covid19

KEY QUESTIONS & ANSWERS

Application of Recent Executive Orders, State and Federal Sick Leave Laws

Publication 2

Hank Kita
Executive Director
Subcontractors Trade Association

AN IMPORTANT READ FOR CONTRACTORS

STA is committed to keeping you up-to-date with information you need to know to navigate new regulations that apply to you and your employees.

Publication 2 reviews key questions and answers related to the various sick leave laws that have been put in place.  In addition, your individual trade association Collective Bargaining Agreement [CBA] may provide additional information.

The following information is organized into several parts:

  1. Some Frequently Asked Questions
  2. Federal Paid Sick Leave Law
  3. New York State Paid Sick Leave Law
  4. Additional Miscellaneous Questions

Take a read, and be sure to consult your attorneys, accountants and advisors on how best to navigate the new laws.

Stay Safe, Stay Strong!

1. SOME FREQUENTLY ASKED QUESTIONS

Click on the orange tabs for more details.

Can my employees still report to work?

Maybe, if the construction is deemed “emergency construction” or “essential construction.” And the state has revised its “essential service” guidance, shutting down all other “non-essential” construction. “Emergency construction” includes projects necessary to protect the health and safety of occupants or continuing a project that cannot be left unfinished until the point where it is safe to shut down the site. “Essential construction” includes roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, affordable housing, and homeless shelters. “Construction work” does not include a single worker who is the sole employee/worker on a job site.

What health and safety considerations must be undertaken on emergency and essential construction sites?

Sites, even if open, must still maintain distance and safety best practices, including maintaining social distancing (which includes elevators, meals, entry, and exit). The state/local government is mandated to close sites that cannot maintain such best practices, and fines of up to $10,000 per violation may be levied.

If I am still operating but an employee comes into work and is not feeling well and merely suspects that they may have COVID-19 and they want to go home, does anything now obligate me to pay that person?

Yes – and this is a change. While New York State law only applied if your sick employee was out “subject to a mandatory or precautionary order of quarantine or isolation,” a new federal law may allow such an employee to take paid sick leave under more general circumstances (see below).

2. FEDERAL PAID SICK LEAVE LAW

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Is there a new federal law that applies to COVID-19 related sick leave at my company?

Yes. The Families First Coronavirus Response Act (FFCRA) now provides for COVID-19 related paid sick leave. It takes precedence over, or “preempts” the recent New York State law.

When does the new federal law take effect?

FFCRA applies to COVID-19 related sick leave taken by employees between April 1, 2020 and December 31, 2020.

What law would apply to claims for COVID-19 related sick leave prior to April 1?

The New York State law, as described in the next section. >> link to Section 2

What does this new federal law provide?

For contractors with under 500 employees, up to two weeks (80 hours) of paid sick leave for any one of six qualifying reasons related to COVID-19, including whether an employee is “experiencing COVID-19 symptoms and is seeking a medical diagnosis.” The law does not apply to companies with more than 500 employees.

With more “qualifying reasons” under the new federal law, will it be easier for my employees to ask for COVID-19 related sick leave than it was under state law?

Yes.

What are the specific benefits to employees?

For a sick employee taking care of themselves, up to $511 per day or a maximum of $5,110 over the entire paid sick leave period; for an employee taking care of another, up to $200 per day or a maximum of $2,000 over the entire paid sick leave period.

Who pays for that?

The employer, BUT your company will receive 100% reimbursement from the IRS, offset against payroll taxes that you owe.

So, is the goal of the new federal program to make a contractor whole for any money they spend on a qualifying employee out on COVID-19 paid sick leave?

Yes.

Could my existing CBA in some way “exempt” me from the new federal law?

No, there is no CBA “carve-out” under the new federal law.

Does FFCRA distinguish between union and non-union employees?

No, other than to say it does not prohibit your CBA from providing benefits that exceed what is mandated in the new federal law.

Does FFCRA provide additional employee benefits?

Yes, it also provides for expanded emergency family and medical leave.

After April 1 might there be some instances when the federal law would not apply to my company, but the state law would?

Yes, under certain circumstances, see Section 2:  NYS State Paid Sick Leave Law

What other federal benefits are available to my employees for COVID-19 related situations?

In addition to paid sick leave, there are Emergency Federal Family and Medical Leave Expansion Act benefits.

3. NEW YORK STATE PAID SICK LEAVE LAW

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After April 1, when would New York State law still apply?

New York State law still applies to 1) companies with more than 500 employees; and 2) companies, whatever the size, in instances where mandated benefits under state law exceed mandated benefits under federal law. In these instances, the employer is responsible for the difference.

So, if state law still applies, what exactly is a “mandatory or precautionary order of quarantine or isolation” – the trigger for when state benefits apply?

The NYS Department of Labor has issued guidance for employers about this, detailed here.

In light of the federal law, is it safe to say the New York paid sick leave Law will now likely apply to a relatively small number of my employees, if any?

Yes, the New York State law is less likely to impact your company if you have less than 500 employees.

If an employee is still not covered under either state or federal law, what applies it they come to work sick?

You can voluntarily send them home, or they can decide to go home. If they are entitled to sick time (or vacation/personal time) pursuant to a collective bargaining agreement (CBA), they can access that time as per the terms of the CBA.

What are my obligations under state law, in order to determine whether I may still owe my employees additional benefits, if this calculation comes out to more than what I owe under federal law?

Contractors with 10 or fewer employees and net income less than $1 million in the preceding year, unlimited unpaid sick leave for as long as the employee is out on quarantine; contractors with 10 or fewer employees and net income greater than $1 million, 5 days of paid sick leave; contractors with 11-99 employees, 5 days of paid sick leave; and contractors with 100 or more employees, 14 days of paid sick leave.]

What other state benefits are available to my employees for COVID-19 related situations?

A combination of Unemployment Insurance, Temporary Disability, Workers’ Compensation and Paid Family Leave benefits are available,

4. ADDITIONAL MISCELLANEOUS QUESTIONS

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What happens if my employee is out longer than I am obligated to pay them under either New York State or federal law, who pays then?

As mentioned above, a combination of state and federal programs (Unemployment Insurance, Temporary Disability, Workers’ Compensation, Paid Family Leave, Emergency Federal Family Medical Leave) will kick in.

Are there are other new sick leave laws that may apply to my company right now?

There is a  state bill (S.7506-B) that would expand “general” paid sick leave statewide, but this bill contains a carve-out for your existing CBA. The legislature will likely pass this bill soon, as part of the 2020-21 state budget.

What if I still have questions?

There is a lot of information out there, and some of it (especially the relationship between the new federal and state paid sick leave laws) can be confusing.

For More Information

For general questions or clarification, contact STA Legislative Counsel Perry M. Ochacher of Willett Public Affairs at 914-319-9173.
For more detailed questions on how any of these laws might affect your company’s day-to-day operations, please consult with your lawyer or other business advisor.

Publication Date
This publication is up-to-date as of April 2, 2020. Continue to consult the STA COVID-19 Resource
Webpage for more information:   www.stanyc.com/covid19