Frequently Asked Questions –
COVID-19 HR Briefing I
We have put together a list of frequently asked questions during our recent HR Briefings with Andrew Singer of Tannenbaum Helpern Syracuse & Hirschtritt LLP
. A few quick questions:
— As currently written, yes – the federal bill requires that the 80 hours (10 days) of emergency paid sick leave be in addition to the 40 hours (5 days) employers are required to give under the NYC paid sick leave law.
— There is no legal difference. “Furlough” may be better for employee morale.
— It really depends on how the employee chooses to use it. We interpret the current drafting of the federal bill as follows – an employee could take the first 10 days as emergency paid sick leave, which is paid at the employee’s regular rate of pay if the employee is sick, or paid at 2/3 the employee’s regular rate of pay if the employee is caring for a sick family member or a child whose school or daycare was closed. Then there is the emergency FMLA, which provides 12 weeks of leave – the first 14 days of which could be unpaid. However, the employee may choose to use any available sick leave, vacation or other PTO during those otherwise unpaid 14 days. After the 14 days, the employee gets paid emergency FMLA at 2/3 the employee’s regular rate of pay.
— No difference. If taking leave for those purposes under the NYC sick leave law, the employee is compensated at the employee’s regular rate of pay. If taking leave for those purposes under the proposed federal bill (emergency paid sick leave or emergency FMLA), the employee is compensated at 2/3 the employee’s regular rate of pay.
— It really depends on the qualifying reason for the leave and how the employee may choose to use certain leaves. For example, NY PFL cannot be used for an employee’s own serious health condition, so it would not apply if the employee had Coronavirus – however, FMLA would apply because it can be used for an employee’s own health condition. Generally, employers should first apply any paid sick leave that employees may be eligible to use (for example, under NYC paid sick leave law). Then, it will depend on the qualifying reason for the leave whether to turn to NY PFL or FMLA.
— You should follow your company policy with respect to remote work. If employees are not following your policy, you can discipline them.
— It is up to the employer to determine whether to keep the employee employed or find another suitable work arrangement. The employer has discretion in this situation.
— If the employee does not otherwise qualify for a paid leave (such as sick leave), then yes – you can require them to use PTO you offer.
— Yes. As the federal bill is currently written, you would not need to provide the emergency FMLA in addition to your own more generous PFL. However, your policy should be clear that your existing PFL policy runs concurrently with any FMLA leave to which the employee may be entitled.
— Yes. As currently written, the federal bill would allow employees to stay home to care for a child whose school or daycare provider closed due to Coronavirus.
— Yes, provided they otherwise meet the unemployment insurance eligibility requirements (e.g., the employee is ready, willing and able to work, etc.).