Covid Pay vs. Sick Pay: Updated NYS Legislation for Covid-19 Leave

New York State recently updated its Covid-19 Leave Laws, which outline employer obligations to employees who must take time off work for Covid-related events. Since the Families First Coronavirus Response Act (FFCRA) expired at the end of 2020, the NYS leave legislation continues to provide protections for workers and help mitigate the spread of the virus. 

Specifically, there are two types of Covid-19 leave available for employees: Vaccination Leave and Sick Leave. Here are the important details for each:

Vaccination Leave

Employers must provide leave for employees to receive the Covid-19 vaccine.  

• Employees may qualify for the Vaccination Leave from March 12, 2021 through December 31, 2022.
• Employees may receive up to 4 hours leave time per injection.
• Up to 8 hours for Moderna and Pfizer (two doses)
• Up to 4 hours for Johnson & Johnson (single dose)
• Includes Booster shots
• Employees should be compensated for this time at their regular pay rate.
• This leave can only be taken for employees to receive their own vaccine.
• Employees may use paid sick leave for side-effects from the vaccine.
• Employees who receive Vaccination Leave are guaranteed job protection without employer retaliation.

Covid-19 Sick Leave (“Quarantine” Leave)

Employers must also provide leave time for employees who are subject to a mandatory or precautionary quarantine due to Covid-19 exposure or illness. 

• Employees may qualify for Covid-19 Sick Leave beginning March 18, 2020 and continuing into the foreseeable future.
• The law provides employees with paid or unpaid sick leave depending on the size of the employer:
•  0-10 employees with a net income of $1 million or less the previous tax year—must provide unpaid leave throughout the duration of the order. Qualifying employees can receive both Paid Family Leave (PFL) and Disability Leave (DBL) benefits.
• 1-10 employees with a net income of more than $1 million in the previous tax year—must provide 5 days of paid sick leave at the employee’s regular pay rate. Qualifying employees can receive PFL and DBL benefits.
• 11-99 employees—must provide 5 days of paid sick leave at the employee’s regular pay rate. Qualifying employees can receive PFL and DBL benefits.
• 100+ employees—must provide 14 days of paid sick leave at the employee’s regular pay rate.
• All employees eligible for Covid-19 Sick Leave are guaranteed job protection without employer retaliation.
• Employees who test positive for Covid-19 must isolate and should receive paid sick leave, even if they have received paid sick leave for a previous isolation.
• Second and third instances of Covid-19 Sick Leave must be accompanied by a verified, positive Covid-19 test.
• An employee can’t use Covid-19 Sick Leave more than three times.
• Even employees who do not test positive for Covid-19 and have not been advised to isolate should still receive paid leave if their employer requires them to miss work because of potential exposure, regardless of where the exposure occurred.

Covid-19 Sick Leave vs. Other Types of Sick Leave 

It’s important to understand the distinction between Covid-19 Sick Leave and other forms of paid sick leave. There are two main differences:

1. The amount of sick leave.  For both Covid-19 Sick Leave and New York Paid Sick Leave, the size of the employer determines how much sick leave an employee will receive and whether that time will be paid or unpaid. However, the criteria are slightly different depending on the circumstances. For instance, large employers with more than 100 employees must provide up to 14 days of Covid-19 Sick Leave but only 56 hours of other forms of paid sick leave. 
2. Accrual of time. In contrast to other types of sick leave in which employees must accrue sick leave time (1 for every 30 hours worked), Covid-19 Sick Leave is not based on employee accruals. Employers cannot require employees to use their existing bank of sick leave or other paid time off.