HR Alert: Navigating Overlapping COVID-19 Leave Laws

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For the last few weeks, employers have been scrambling to ensure their compliance with the Families First Coronavirus Response Act (FFCRA). The FFCRA provides two types of leave for employees during this pandemic:  (1) Emergency Paid Sick Leave (EPSL) and (2) Expanded Family and Medical Leave (EFMLA). You can read more about these requirements here.

Complying with the FFCRA is important, but employers must not forget other New York and federal leave laws that are implicated by COVID-19. In this post, we’ve compiled answers to commonly asked question about overlapping leave laws.

What laws can provide employees with leave related to COVID-19?  In addition to EPSL and EFMLA as provided by the FFCRA, employees may also be eligible for “regular” leave under the federal Family and Medical Leave Act (FMLA) or New York’s regular Paid Family Leave (PFL) law.  We say “regular” because both of these laws were expanded by recent coronavirus legislation.  Still, some employees may be eligible for leave under portions of these laws that existed before the expansion, for example, an employee who needs leave to care for a close family member with a serious health condition.

In case you missed it, New York also has its own COVID-19 Sick Leave law which applies to all employers in New York State. This law permits certain employees to receive disability benefits if they become the subject of a mandatory COVID-19 quarantine or isolation order. In addition, the New York COVID-19 Sick Leave law expands PFL so that certain employees now can take PFL for their own illness/quarantine/isolation. Under the New York law, PFL and disability benefits can run concurrently.

What if my business isn’t covered by the FFCRA?  Employers not covered by the FFCRA (for example, certain healthcare providers and emergency responders that opt out of coverage or employers with more than 500 employees) still must comply with New York’s COVID-19 Sick Leave law. The State law applies to all New York employers. In addition to the NY COVID-19 Sick Leave law, most employers will be required to comply with “regular” PFL, and most employers with 50 or more employees must comply with the pre-existing FMLA provisions.

Can an employee be eligible for leave under multiple laws at once?  Yes! Employers must be mindful that certain leaves can, and likely will, overlap. For example, NY COVID-19 Sick Leave and EPSL will overlap when an employee is subject to a mandatory COVID-19 quarantine or isolation order. Similarly, if leave is taken to care for a close family member with COVID-19, the employee may be eligible for FMLA and/or PFL in addition to FFCRA benefits.

Can an employee be required to use his accrued time off during leave?  It depends. Certain laws like the FMLA and EFMLA permit an employer to require an employee to use his accrued paid time off. Other laws, such as NY’s COVID-19 Sick Leave law, PFL, and EPSL, expressly prohibit employers from requiring that its employee use his accrued paid time off. So what’s an employer supposed to do?

Unfortunately, this gets even trickier when different types of leave run concurrently. For example, if FMLA and PFL run together, an employer still may require an employee to use his accrued paid time off. In contrast, however, when EPSL and EFMLA run concurrently, an employer may not require an employee to use his accrued paid time off.

Readers, beware! Although it would be easier if we could report that one size fits all, the reality is that many of the laws described in this post have different requirements about whether a particular business must comply.  Unfortunately, the size of a business and the industry in which it operates may drastically change the types of leave available to its employees. For this reason, we urge you to consult legal counsel if you have questions about which laws impact your business.

In the age of coronavirus, it’s crucial that employers have user-friendly policies in place. Here at The Coppola Firm, we’re arming our clients with straightforward policies and leave applications so they know exactly what to do when a leave request comes in.

If you think your business would benefit from streamlined employment policies, contact us. Our attorneys are glad to craft a policy tailored to your specific needs.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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