The Families First Coronavirus Response Act (FFCRA), enacted in response to the COVID-19 pandemic in March 2020, partially expired as of December 31, 2020. The Act required employers with fewer than 500 employees to provide employees with paid sick leave and expanded family and medical leave for specified reasons directly related to COVID-19.
As of December 31st, employers are no longer required to provide FFCRA leave to employees. Some employers could voluntarily continue to offer FFCRA leave, for which they will be compensated with a tax credit benefit. This exception was created as part of the December 27 stimulus package and only extended through March 31, 2020. This tax credit reimburses employers for the cost of providing FFCRA leave.
Fortunately, New York employers and employees will have certain leave, benefits and job protections which remain in full force. These benefits and protections were also signed into effect in March 2020 as well and their key provisions include sick leave, disability benefits, job protection, etc. (BILL NO. S08091)
Sick leave benefits still available to New Yorkers include a certain amount of job protected sick leave for those who are mandated to quarantine and isolate. The Act’s leave provided by private employers to employees must be in addition to and without loss of an employee’s accrued sick leave. The employer brackets of how much available quarantine order sick leave are as follows:
|Employers with 100 or more employees||Employers with between 11 and 99 employees||Employers with 10 or fewer employees|
|Must provide each employee subject to quarantine with at least 14 days of paid sick leave and unpaid leave until the termination of the Quarantine Order.||Must provide each employee subject to quarantine with at least five days of paid sick leave and unpaid leave until the termination of the Quarantine Order. Once paid leave has run out, employees are eligible for family leave and disability benefits.
|Must provide five days of paid sick leave to each employee subject to quarantine until the termination of the Quarantine Order, provided the employer earned more than $1 million in the previous tax year. Once paid leave has run out, employees are eligible for family leave and disability benefits.
Employers with 10 or fewer employees that have a net income of less than $1 million in the previous tax year must provide each employee subject to a Quarantine Order with unpaid sick leave. During this period, employees are eligible for family leave and disability benefits.
The Act encourages recipients of unpaid sick leave to utilize the New York State Paid Family Leave (NYPFL) and disability benefits to the extent they quality. Disability Benefits as well as Family Leave have been expanded to encompass a greater number of employees. Employees subject to a quarantine are eligible for both disability and family leave benefits concurrently unless they have not been employed long enough for eligibility for disability or paid family leave.
The normal waiting period of seven days to receive disability benefits has been waived. But, the qualifying periods for employee eligibility for disability and paid family leave benefits are still in place. This includes employment of 30 consecutive days for disability and 26 consecutive weeks for family leave, for full-time employees.
There are two major exemptions to the option of sick leave and otherwise available COVID-19 related benefits. First, an exemption to sick leave is for employees who have been deemed asymptomatic and are physically able to work while under quarantine. This includes through options of remote access. An addition exemption to sick leave is for employees who have performed nonessential travel to any “contiguous states” with CDC health notices. These employees will automatically forgo paid sick leave. This exception does not apply if the employee travels for work or at the employer’s request.
Furthermore, employers from discharging, threatening, penalizing or otherwise discriminating or retaliating against employees for taking protected leave. Employees, upon returning from protected leave, should be provided their original position with the same pay and terms.
Under the FFCRA, employers had to navigate sick leave and benefits between federal and state laws. Now with the expiration of the FFCRA, New York employers are now limited on their guidance regarding COVID-19 related benefits and sick leave. But, as the FMLA is still federal legislation, employers will need to consider federal provisions when enforcing leave. Under the changing administration, there is uncertainty whether the FFCRA will be reinstated or otherwise developed.