New York's COVID-19 Leave Pay: An Update

As COVID-19 cases increase in New York, employers are reminded that the state continues to mandate paid COVID-19 sick leave in most cases. Unlike paid COVID-19 leave under the Federal Families First Coronavirus Response Act, paid New York COVID-19 leave does not have an end or sunset date. 

As we have previously explained here, here and here, most New York employers must provide paid leave to employees who need to quarantine (or otherwise need to stay home) due to COVID-19 and cannot perform work for the employer. The amount of paid leave that an employer must provide is based on the employer’s headcount as of January 1, 2020: 

• Employers with 1-10 employees with a net annual income of over $1 million must provide 5 days of paid leave. 
• Employers with 11-99 employees must provide 5 days of paid leave. 
• Employers with 100+ employees must provide 14 days of paid leave. 

This leave is in addition to traditional sick leave. If employees can return to work sooner than the leave period, the employer can require employees to do so. 

Employees using COVID-19 leave must be paid the amount that the employee would have otherwise received had they continued to work as scheduled. (Employers do not need to include tips in this calculation, but tipped employees must be paid at the rate of at least $15.00 per hour.) Employees who work a fixed schedule or are paid a salary must continue to receive pay for the applicable period. For hourly, part-time, commissioned salespeople and other employees who are not paid a fixed wage, you must determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate. 

According to the New York Department of Labor, employees may take advantage of New York COVID-19 paid leave on three separate occasions. Therefore, if an employee used New York COVID-19 leave twice in 2020 and once in early 2022, the employee would not be entitled to additional New York COVID-19 leave should the employee contact the virus a fourth time. Employees who no longer have available COVID-19 paid leave may also be eligible to receive other forms of paid leave, such as Paid Sick Leave or combined Paid Family Leave and disability COVID-19 quarantine benefits. 

For more information, please contact Glenn S. Grindlinger at ggrindlinger@foxrothschild.com or 212.905.2305, Alexander Bogdan at abogdan@foxrothschild.com or 212.878.7941, or any member of Fox Rothschild’s Labor & Employment Department.