Bill Text: NY S08090 | 2019-2020 | General Assembly | Introduced
Bill Title: Provides requirements for sick leave and the provision of certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; provides for sick leave.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2020-03-17 - REFERRED TO RULES [S08090 Detail]
Download: New_York-2019-S08090-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8090 IN SENATE March 17, 2020 ___________ Introduced by Sen. RAMOS -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT providing requirements for sick leave and the provision of certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; and to amend the labor law, in relation to requirements for sick leave The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. 1.(a) For employers with ten or fewer employees as of Janu- 2 ary 1, 2020, each employee who is subject to a mandatory or precaution- 3 ary order of quarantine or isolation issued by the state of New York, 4 the department of health, local board of health, or any governmental 5 entity duly authorized to issue such order due to COVID-19, shall be 6 provided with unpaid sick leave until the termination of any mandatory 7 or precautionary order of quarantine or isolation due to COVID-19 and 8 any other benefit as provided by any other provision of law. During the 9 period of mandatory or precautionary quarantine or isolation, an employ- 10 ee shall be eligible for paid family leave benefits and benefits due 11 pursuant to disability pursuant to this act. An employer with ten or 12 fewer employees as of January 1, 2020, and that has a net income of 13 greater than one million dollars in the previous tax year, shall provide 14 each employee who is subject to a precautionary or mandatory order of 15 quarantine or isolation issued by the state of New York, the department 16 of health, local board of health, or any governmental entity duly 17 authorized to issue such order due to COVID-19, at least five days of 18 paid sick leave and unpaid leave until the termination of any mandatory 19 or precautionary order of quarantine or isolation. After such five days 20 of paid sick leave, an employee shall be eligible for paid family leave 21 benefits and benefits due pursuant to disability pursuant to this act. 22 (b) For employers with between eleven and ninety-nine employees as of 23 January 1, 2020, each employee who is subject to a mandatory or precau- 24 tionary order of quarantine or isolation issued by the state of New 25 York, the department of health, local board of health, or any govern- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD12051-02-0S. 8090 2 1 mental entity duly authorized to issue such order due to COVID-19, shall 2 be provided with at least five days of paid sick leave and unpaid leave 3 until the termination of any mandatory or precautionary order of quaran- 4 tine or isolation. After such five days of paid sick leave, an employee 5 shall be eligible for paid family leave benefits and benefits due pursu- 6 ant to disability pursuant to this act. 7 (c) For employers with one hundred or more employees as of January 1, 8 2020, each employee who is subject to a mandatory or precautionary order 9 of quarantine or isolation issued by the state of New York, the depart- 10 ment of health, local board of health, or any governmental entity duly 11 authorized to issue such order due to COVID-19, shall be provided with 12 at least fourteen days of paid sick leave during any mandatory or 13 precautionary order of quarantine or isolation. 14 (d) For public employers, each officer or employee who is subject to a 15 mandatory or precautionary order of quarantine or isolation issued by 16 the state of New York, the department of health, local board of health, 17 or any governmental entity duly authorized to issue such order due to 18 COVID-19 shall be provided with at least fourteen days of paid sick 19 leave during any mandatory or precautionary order of quarantine or 20 isolation. Each officer or employee shall be compensated at his or her 21 regular rate of pay for those regular work hours during which the offi- 22 cer or employee is absent from work due to a mandatory or precautionary 23 order of quarantine or isolation due to COVID-19. For purposes of this 24 act, "public employer" shall mean the following: (i) the state; (ii) 25 a county, city, town or village; (iii) a school district, board of 26 cooperative educational services, vocational education and extension 27 board or a school district as enumerated in section 1 of chapter 566 28 of the laws of 1967, as amended; (iv) any governmental entity operating 29 a college or university; (v) a public improvement or special district 30 including police or fire districts; (vi) a public authority, commis- 31 sion or public benefit corporation; or (vii) any other public corpo- 32 ration, agency, instrumentality or unit of government which exercises 33 governmental power under the laws of this state. 34 (e) Such leave shall be provided without loss of an officer or employ- 35 ee's accrued sick leave. 36 2. For purposes of this act, "mandatory or precautionary order of 37 quarantine or isolation" shall mean a mandatory or precautionary order 38 of quarantine or isolation issued by the state of New York, the depart- 39 ment of health, local board of health, or any government entity duly 40 authorized to issue such order due to COVID-19. 41 3. Upon return to work following leave taken pursuant to this act, an 42 employee shall be restored by his or her employer to the position of 43 employment held by the employee prior to any leave taken pursuant to 44 this act with the same pay and other terms and conditions of employment. 45 No employer or his or her agent, or the officer or agent of any corpo- 46 ration, partnership, or limited liability company, or any other person, 47 shall discharge, threaten, penalize, or in any other manner discriminate 48 or retaliate against any employee because such employee has taken leave 49 pursuant to this act. 50 4. An employee shall not receive paid sick leave benefits or any other 51 paid benefits provided by any provisions of this section if the employee 52 is subject to a mandatory or precautionary order of quarantine because 53 the employee has returned to the United States after traveling to a 54 country for which the Centers for Disease Control and Prevention has a 55 level two or three travel health notice and the travel to that country 56 was not taken as part of the employee's employment or at the directionS. 8090 3 1 of the employee's employer, and if the employee was provided notice of 2 the travel health notice and the limitations of this subdivision prior 3 to such travel. Such employee shall be eligible to use accrued leave 4 provided by the employer, or to the extent that such employee does not 5 have accrued leave or sufficient accrued leave, unpaid sick leave shall 6 be provided for the duration of the mandatory or precautionary quaran- 7 tine or isolation. 8 5. The commissioner of labor shall have authority to adopt regu- 9 lations, including emergency regulations, and issue guidance to effectu- 10 ate any of the provisions of this act. Employers shall comply with regu- 11 lations promulgated by the commissioner of labor for this purpose which 12 may include, but is not limited to, standards for the use, payment, and 13 employee eligibility of sick leave pursuant to this act. 14 6. Notwithstanding any other provision of law, and for purposes of 15 this act only, for purposes of article 9 of the workers' compensation 16 law, "disability" shall mean: any inability of an employee to perform 17 the regular duties of his or her employment or the duties of any other 18 employment which his or her employer may offer him or her as a result of 19 a mandatory or precautionary order of quarantine or isolation issued by 20 the state, the department of health, a local board of health, or any 21 government entity duly authorized to issue such order due to COVID-19 22 and when the employee has exhausted all paid sick leave provided by the 23 employee's employer under this act. 24 7. Notwithstanding subdivision 1 of section 204 of the workers' 25 compensation law, disability benefits payable pursuant to this act shall 26 be payable on the first day of disability. 27 8. Notwithstanding any other provision of law, and for purposes of 28 this act only, for purposes of article 9 of the workers' compensation 29 law, "family leave" shall mean: (a) any leave taken by an employee from 30 work when an employee is subject to a mandatory or precautionary order 31 of quarantine or isolation issued by the state, the department of 32 health, a local board of health, or any government entity duly author- 33 ized to issue such order due to COVID-19; or (b) to provide care for a 34 minor dependent child of the employee who is subject to a mandatory or 35 precautionary order of quarantine or isolation issued by the state, the 36 department of health, a local board of health, or any government entity 37 duly authorized to issue such order due to COVID-19. 38 9. Notwithstanding any other provision of law, and for purposes of 39 this act only, for purposes of article 9 of the workers' compensation 40 law, disability and family leave benefits pursuant to this act may be 41 payable concurrently to an eligible employee upon the first full day of 42 an unpaid period of mandatory or precautionary order of quarantine or 43 isolation issued by the state of New York, the department of health, a 44 local board of health, or any government entity duly authorized to issue 45 such order due to COVID-19, provided however, an employee may not 46 collect any benefits that would exceed $840.70 in paid family leave and 47 $2,043.92 in benefits due pursuant to disability per week. 48 10. Notwithstanding any other provision of law, and for purposes of 49 this act only, for purposes of article 9 of the workers' compensation 50 law, the maximum weekly benefit which the employee is entitled to 51 receive for benefits due pursuant to disability pursuant to subdivision 52 six of this section only shall be the difference between the maximum 53 weekly family leave benefit and such employee's total average weekly 54 wage from each covered employer up to a maximum benefit due pursuant to 55 disability of $2,043.92 per week.S. 8090 4 1 11. Notwithstanding subdivision 7 of section 590, and subdivision 2 of 2 section 607, of the labor law, a claim for benefits under article 18 of 3 the labor law due to closure of an employer otherwise subject to this 4 section for a reason related to COVID-19 or due to a mandatory order of 5 a government entity duly authorized to issue such order to close such 6 employer otherwise subject to this section, shall not be subject to a 7 waiting period for a claim for benefits pursuant to such title. 8 12. A mandatory or precautionary order of quarantine or isolation 9 issued by the state, the department of health, a local board of health, 10 or any government entity duly authorized to issue such order due to 11 COVID-19 shall be sufficient proof of disability or proof of need for 12 family leave taken pursuant to this act. 13 13. The provisions of this act shall not apply in cases where an 14 employee is deemed asymptomatic or has not yet been diagnosed with any 15 medical condition and is physically able to work while under a mandatory 16 or precautionary order of quarantine or isolation, whether through 17 remote access or other similar means. 18 14. Nothing in this section shall be deemed to impede, infringe, 19 diminish or impair the rights of a public employee or employer under any 20 law, rule, regulation or collectively negotiated agreement, or the 21 rights and benefits which accrue to employees through collective 22 bargaining agreements, or otherwise diminish the integrity of the exist- 23 ing collective bargaining relationship, or to prohibit any personnel 24 action which otherwise would have been taken regardless of any request 25 to use, or utilization of, any leave provided by this act. 26 15. Notwithstanding any inconsistent provision of law, on or before 27 June 1, 2020, the superintendent of financial services by regulation, in 28 consultation with the director of the state insurance fund and the chair 29 of the workers' compensation board of the state, shall promulgate regu- 30 lations necessary for the implementation of a risk adjustment pool to be 31 administered directly by the superintendent of financial services, in 32 consultation with the director of the state insurance fund and the chair 33 of the workers' compensation board of the state. "Risk adjustment pool" 34 as used in this subdivision shall mean the process used to stabilize 35 member claims pursuant to this act in order to protect insurers from 36 disproportionate adverse risks. Disproportionate losses of any members 37 of the risk adjustment pool in excess of threshold limits established by 38 the superintendent of financial services of the state may be supported, 39 if required by the superintendent, by other members of such pool includ- 40 ing the state insurance fund in a proportion to be determined by the 41 superintendent. Any such support provided by members of the pool shall 42 be fully repaid, including reasonable interest, through a mechanism and 43 period of time to be determined by the superintendent of financial 44 services. 45 16. (a) The superintendent of financial services, in consultation 46 with the director of the state insurance fund and the chair of the work- 47 ers' compensation board shall issue two reports assessing the risk 48 adjustment pool required by this act. 49 (b) On or before January 1, 2022, an initial report shall be provided 50 to the speaker of the assembly, the chair of the assembly ways and means 51 committee and the chair of the assembly labor committee, the temporary 52 president of the senate, the chair of the senate finance committee and 53 the chair of the senate labor committee. Such report shall include: 54 the total number of claims filed pursuant to this section for (i) family 55 leave benefits, and (ii) benefits due to disability, as a result of a 56 mandatory or precautionary order of quarantine or isolation due toS. 8090 5 1 COVID-19; the aggregate amount of paid family leave claims and disabili- 2 ty claims; the total amount of the claims paid for out of the risk 3 adjustment pool; the threshold limits established by the department of 4 financial services; and any other information the superintendent of 5 financial services deems necessary to provide to the legislature. 6 (c) On or before January 1, 2025, a final report shall be provided to 7 the speaker of the assembly, the chair of the assembly ways and means 8 committee and the chair of the assembly labor committee, the temporary 9 president of the senate, the chair of the senate finance committee and 10 the chair of the senate labor committee. Such report shall include the 11 balance of the risk adjustment pool, if any, the total amount collected 12 through the repayment mechanism established by the department of finan- 13 cial services including interest; and any other information the super- 14 intendent of financial services deems necessary to provide to the legis- 15 lature. If there exists a balance in the risk adjustment pool, the 16 final report shall provide a timeline by which repayment will be 17 completed. 18 17. If at any point while this section shall be in effect the federal 19 government by law or regulation provides sick leave and/or employee 20 benefits for employees related to COVID-19, then the provisions of this 21 section, including, but not limited to, paid sick leave, paid family 22 leave, and benefits due to disability, shall not be available to any 23 employee otherwise subject to the provisions of this section; provided, 24 however, that if the provisions of this section would have provided sick 25 leave and/or employee benefits in excess of the benefits provided by the 26 federal government by law or regulation, then such employee shall be 27 able to claim such additional sick leave and/or employee benefits pursu- 28 ant to the provisions of this section in an amount that shall be the 29 difference between the benefits available under this section and the 30 benefits available to such employee, if any, as provided by such federal 31 law or regulation. 32 § 2. The labor law is amended by adding a new section 196-b to read as 33 follows: 34 § 196-b. Sick leave requirements. 1. Every employer shall be required 35 to provide its employees with sick leave as follows: 36 a. For employers with four or fewer employees in any calendar year, 37 each employee shall be provided with up to forty hours of unpaid sick 38 leave in each calendar year; provided, however, an employer that employs 39 four or fewer employees in any calendar year and that has a net income 40 of greater than one million dollars in the previous tax year shall 41 provide each employee with up to forty hours of paid sick leave pursuant 42 to this section; 43 b. For employers with between five and ninety-nine employees in any 44 calendar year, each employee shall be provided with up to forty hours of 45 paid sick leave in each calendar year; and 46 c. For employers with one hundred or more employees in any calendar 47 year, each employee shall be provided with up to fifty-six hours of paid 48 sick leave each calendar year. 49 For purposes of determining the number of employees pursuant to this 50 subdivision, a calendar year shall mean the twelve-month period from 51 January first through December thirty-first. For all other purposes, a 52 calendar year shall either mean the twelve-month period from January 53 first through December thirty-first, or a regular and consecutive 54 twelve-month period, as determined by an employer. 55 2. Nothing in this section shall be construed to prohibit or prevent 56 an employer from providing an amount of sick leave, paid or unpaid,S. 8090 6 1 which is in excess of the requirements set forth in subdivision one of 2 this section, or from adopting a paid leave policy that provides addi- 3 tional benefits to employees. An employer may elect to provide its 4 employees with the total amount of sick leave required to fulfill its 5 obligations pursuant to subdivision one of this section at the beginning 6 of the calendar year, provided, however that no employer shall be 7 permitted to reduce or revoke any such sick leave based on the number of 8 hours actually worked by an employee during the calendar year if such 9 employer elects pursuant to this subdivision. 10 3. Employees shall accrue sick leave at a rate of not less than one 11 hour per every thirty hours worked, beginning at the commencement of 12 employment or the effective date of this section, whichever is later, 13 subject to the use and accrual limitations set forth in this section. 14 4. a. On and after January first, two thousand twenty-one and upon the 15 oral or written request of an employee, an employer shall provide 16 accrued sick leave for the following purposes: 17 (i) for a mental or physical illness, injury, or health condition of 18 such employee or such employee's family member, regardless of whether 19 such illness, injury, or health condition has been diagnosed or requires 20 medical care at the time that such employee requests such leave; 21 (ii) for the diagnosis, care, or treatment of a mental or physical 22 illness, injury or health condition of, or need for medical diagnosis 23 of, or preventive care for, such employee or such employee's family 24 member; or 25 (iii) for an absence from work due to domestic violence pursuant to 26 subdivision thirty-four of section two hundred ninety-two of the execu- 27 tive law, a sexual offense, stalking, or human trafficking, for such 28 employee to avail themselves or a family member of services or assist- 29 ance including, but not limited to, to obtain services from a domestic 30 violence shelter, rape crisis center, or other shelter or services 31 program for relief from a family offense matter, sexual offense, stalk- 32 ing, or human trafficking; to participate in safety planning, temporar- 33 ily or permanently relocate, or take other actions to increase the safe- 34 ty of the employee or employee's family members from future family 35 offense matters, sexual offenses, stalking, or human trafficking; to 36 meet with a civil attorney or other social services provider to obtain 37 information and advice on, and prepare for or participate in any crimi- 38 nal or civil proceeding, including but not limited to, matters related 39 to a family offense matter, sexual offense, stalking, human trafficking, 40 custody, visitation, matrimonial issues, orders of protection, immi- 41 gration, housing, discrimination in employment, housing or consumer 42 credit; to file a complaint or domestic incident report with law 43 enforcement; to meet with a district attorney's office; to enroll chil- 44 dren in a new school; or to take other actions necessary to maintain, 45 improve, or restore the physical, psychological, or economic health or 46 safety of the employee or the employee's family member or to protect 47 those who associate or work with the employee. 48 b. For purposes of this section, "family member" shall mean an employ- 49 ee's child, spouse, domestic partner, parent, sibling, grandchild or 50 grandparent; and the child or parent of an employee's spouse or domestic 51 partner. "Parent" shall mean a biological, foster, step- or adoptive 52 parent, or a legal guardian of an employee, or a person who stood in 53 loco parentis when the employee was a minor child. "Child" shall mean a 54 biological, adopted or foster child, a legal ward, or a child of an 55 employee standing in loco parentis.S. 8090 7 1 5. a. An employer may not require the disclosure of confidential 2 information relating to a mental or physical illness, injury, or health 3 condition of such employee or such employee's family member, or informa- 4 tion relating to absence from work due to domestic violence, a sexual 5 offense, stalking, or human trafficking, as a condition of providing 6 sick leave pursuant to this section. 7 b. An employer may set a reasonable minimum increment for the use of 8 sick leave which shall not exceed four hours. Employees shall receive 9 compensation at his or her regular rate of pay, or the applicable mini- 10 mum wage established pursuant to section six hundred fifty-two of this 11 chapter, whichever is greater, for the use of paid sick leave. 12 6. An employee's unused sick leave shall be carried over to the 13 following calendar year, provided, however, that: (i) an employer with 14 fewer than one hundred employees may limit the use of sick leave to 15 forty hours per calendar year; and (ii) an employer with one hundred or 16 more employees may limit the use of sick leave to fifty-six hours per 17 calendar year. Nothing in this section shall be construed to require an 18 employer to pay an employee for unused sick leave upon such employee's 19 termination, resignation, retirement, or other separation from employ- 20 ment. 21 7. No employer or his or her agent, or the officer or agent of any 22 corporation, partnership, or limited liability company, or any other 23 person, shall discharge, threaten, penalize, or in any other manner 24 discriminate or retaliate against any employee because such employee has 25 exercised his or her rights afforded under this section, including, but 26 not limited to, requesting sick leave and using sick leave, consistent 27 with the provisions of section two hundred fifteen of this chapter. 28 8. An employer shall not be required to provide any additional sick 29 leave pursuant to this section if the employer has adopted a sick leave 30 policy or time off policy that provides employees with an amount of 31 leave which meets or exceeds the requirements set forth in subdivision 32 one of this section and satisfies the accrual, carryover, and use 33 requirements of this section. 34 9. Nothing in this section shall be construed to: a. prohibit a 35 collective bargaining agreement entered into, on or after the effective 36 date of this section from, in lieu of the leave provided for in this 37 section, providing a comparable benefit for the employees covered by 38 such agreement in the form of paid days off; such paid days off shall be 39 in the form of leave, compensation, other employee benefits, or some 40 combination thereof; or 41 b. impede, infringe, or diminish the ability of a certified collective 42 bargaining agent to negotiate the terms and conditions of sick leave 43 different from the provisions of this section. 44 Provided, however, that in the case of either paragraph a or b of this 45 subdivision, the agreement must specifically acknowledge the provisions 46 of this section. 47 10. Upon return to work following any sick leave taken pursuant to 48 this section, an employee shall be restored by his or her employer to 49 the position of employment held by such employee prior to any sick leave 50 taken pursuant to this section with the same pay and other terms and 51 conditions of employment. 52 11. Upon the oral or written request of an employee, an employer shall 53 provide a summary of the amounts of sick leave accrued and used by such 54 employee in the current calendar year and/or any previous calendar year. 55 The employer shall provide such information to the employee within three 56 business days of such request.S. 8090 8 1 12. Nothing in this section shall be construed to prevent a city with 2 a population of one million or more from enacting and enforcing local 3 laws or ordinances which meet or exceed the standard or requirements for 4 minimum hour and use set forth in this section, as determined by the 5 commissioner. Any paid sick leave benefits provided by a sick leave 6 program enforced by a municipal corporation in effect as of the effec- 7 tive date of this section shall not be diminished or limited as a result 8 of the enactment of this section. 9 13. The commissioner shall have authority to adopt regulations and 10 issue guidance to effectuate any of the provisions of this section. 11 Employers shall comply with regulations and guidance promulgated by the 12 commissioner for this purpose which may include but are not limited to 13 standards for the accrual, use, payment, and employee eligibility of 14 sick leave. 15 14. The department shall conduct a public awareness outreach campaign 16 which shall include making information available on its website and 17 otherwise informing employers and employees of the provisions of this 18 section. 19 § 3. Subdivision 4 of section 195 of the labor law, as amended by 20 chapter 564 of the laws of 2010, is amended to read as follows: 21 4. establish, maintain and preserve for not less than six years 22 contemporaneous, true, and accurate payroll records showing for each 23 week worked the hours worked; the rate or rates of pay and basis there- 24 of, whether paid by the hour, shift, day, week, salary, piece, commis- 25 sion, or other; gross wages; deductions; allowances, if any, claimed as 26 part of the minimum wage; amount of sick leave provided to each employ- 27 ee; and net wages for each employee. For all employees who are not 28 exempt from overtime compensation as established in the commissioner's 29 minimum wage orders or otherwise provided by New York state law or regu- 30 lation, the payroll records shall include the regular hourly rate or 31 rates of pay, the overtime rate or rates of pay, the number of regular 32 hours worked, and the number of overtime hours worked. For all employees 33 paid a piece rate, the payroll records shall include the applicable 34 piece rate or rates of pay and number of pieces completed at each piece 35 rate; 36 § 4. Severability clause. If any clause, sentence, paragraph, subdivi- 37 sion, section or part of this act shall be adjudged by any court of 38 competent jurisdiction to be invalid, such judgment shall not affect, 39 impair, or invalidate the remainder thereof, but shall be confined in 40 its operation to the clause, sentence, paragraph, subdivision, section 41 or part thereof directly involved in the controversy in which such judg- 42 ment shall have been rendered. It is hereby declared to be the intent of 43 the legislature that this act would have been enacted even if such 44 invalid provisions had not been included herein. 45 § 5. This act shall take effect immediately; provided, however that 46 sections two and three of this act shall take effect on the one hundred 47 eightieth day after it shall have become a law; provided, further, that 48 the department of labor may promulgate rules and regulations to effectu- 49 ate the purposes of this act, on or before such effective date.