The below is provided by Kieran Bastible, Esq., lead employment counsel at K&K. (Advice good as of today's date, subject to change.)
The federal Families First Coronavirus Response Act (“FFCRA”) paid sick leave and expanded family and medical leave requirements expired December 31, 2020.
The New COVID-19 Stimulus Package, as detailed in the Consolidated Appropriations Act (CAA), does not extend the FFCRA requirement that covered employers provide leave benefits to qualifying employees. Employers are no longer legally required to provide such leave. Thus, employees who were eligible for Leave under FFCRA in 2020, but did not use any, are not entitled to take paid sick or expanded family and medical leave after 12/31/2020. However, employers are required to pay employees who took time off between April 1, 2020 and the December 31, 2020 expiration date, and were not reimbursed. Moreover, the CAA does provide an incentive for private employers to voluntarily continue providing COVID-19 benefits by extending employer tax credits for paid sick leave and expanded family and medical leave until March 31, 2021. (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#104)
Best practice dictates that employers communicate this “sunset” to employees so they aren't surprised, and further advise them as to their options for continued leave, paid or unpaid, beginning January 1, 2021.
By contrast, New York State’s quarantine leave law, which provides mandatory leave and certain paid benefits for employees affected by a quarantine order, did not sunset after December 31st. Under these circumstances, most employees are entitled to financial compensation by using a combination of benefits, which may include new employer-provided paid sick leave (depending on the size of the employer), Paid Family Leave and disability benefits. These benefits are not available to employees who are able to work through remote access or other means. Most employers in New York State are now required to provide at least five days (and as much as fourteen days) of job protected, paid sick leave to employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19.
Regarding school closures, if a child’s school or care center is closed due to a mandatory or precautionary order of quarantine or isolation issued by New York State, department of health, local board of health, or government entity, an employee may be eligible to apply for New York Paid Family Leave (“PFL”) benefits (but will not be eligible for paid leave directly from an employer). New York’s Law does not provide eligibility for PFL benefits for school closures unrelated to a quarantine (e.g. for preventative social distancing), and New York State has clarified that an employee is not eligible to utilize PFL because an employee’s child is out of school due to school closure. A parent/employee may be entitled to PFL for other reasons, such as a child who is subject to a mandatory quarantine order or has tested positive for COVID-19. (https://paidfamilyleave.ny.gov/COVID19)
Finally, the New York City Earned Safe and Sick Time Act (“ESSTA”) provides that employees may use sick leave to take time off from work when they “need to care for a child whose school or child care provider closed due to a public health emergency.” (https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSickLeave-FAQs.pdf)
This complex web of leave options poses a challenge for employers during the COVID-19 pandemic. If you have questions, ask them. It's also important to stay up to date, as the state of affairs are changing daily. We'll see what the next round of stimulus brings for leave topics - stay tuned.
Have a question for us? You can reach him by email at KBastible@kirschenbaumesq.com, and by phone at (516) 747-6700 x. 315, or email Jennifer. Consults for medical/dental society members are free (capped at 1 phone call for a reasonable time period (let's be reasonable)).