There are at least THREE possible sources for sick leave pay to care for yourself and your loved ones if you are a New York worker who is still employed. Workers in New York State may be eligible for either federal or state emergency paid sick leave coverage. If you work in New York City or Westchester County, you may also be eligible for paid sick leave under local law that can be used on top of state or federal emergency leave.
If you are unemployed, you may be eligible for unemployment insurance benefits, which have been expanded during this crisis (see question 11).
Question 1 lays out the three laws that cover sick time benefits during the COVID-19 crisis. The subsequent questions are FAQs about individual situations.
As a worker in New York State or New York City, what are the laws that might give me sick time during this public health emergency?
FFCRA provides 80 hours of paid sick leave for a variety of coronavirus related purposes* for full-time workers (and a pro-rated amount of time for part-time workers). If you cannot work or telework due to caring for your son or daughter because their school or place of care has been closed or their child care provider is unavailable due to the coronavirus, the law also provides for up to 12 weeks of emergency family leave, of which 10 weeks must be paid.
You are probably covered if you work as an employee in:
- Any public agency regardless of size; or
- A private entity with less than 500 employees total.
Purposes covered by FFCRA:
- The worker is subject to a federal, state, or local quarantine or isolation order related to coronavirus;
- The worker has been advised by a health care provider to self-quarantine due to concerns related to coronavirus;
- The worker is experiencing coronavirus symptoms and seeking a medical diagnosis;
- The worker is caring for an individual (note: by regulation, “individual” means a member of the worker’s immediate family, someone with whom the worker shares a home, or a similar person with whom you have a relationship that creates an expectation that you would care for the person if he or she were quarantined or self-quarantined) who is subject to a federal, state, or local quarantine or isolation order related to coronavirus or who has been advised by a health care provider to self-quarantine due to concerns related to coronavirus;
- The worker is caring for a son or daughter if a school or place of care has been closed due to coronavirus, or the child care provider of the son or daughter is unavailable due to coronavirus (note: “son or daughter” includes a biological, foster, or adopted child, a stepchild, a child of a domestic partner, a legal ward, or the child of a person standing in loco parentis under 18 years of age or 18 years of age or older who is incapable of self-care because of a mental or physical disability; in loco parentis refers to someone acting and intending to act as a parent, with no requirement of a legal or biological relationship); or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury.
You are not eligible for these leave and benefits if:
- You work for a health care provider or emergency responder, and your employer has elected to exclude you from the emergency paid sick leave or family leave requirements.
- The Secretary of Labor has issued rules that exclude your employer (health care providers and emergency responders) from the emergency paid sick leave or family leave requirements.
- You may not be eligible for emergency paid sick leave for school/childcare closures or family leave for school/childcare closures, or when childcare is unavailable, due to the coronavirus, if you work for a business with less than 50 employees that believes they are exempted because providing those benefits would jeopardize the business’s viability.
- Most federal employees are not eligible for emergency paid family leave, but are eligible for emergency paid sick time.
You cannot be eligible for New York State Emergency Sick Leave if you are eligible for Federally mandated sick leave under FFCRA (see above) and the New York State Emergency Sick Leave does not provide you with greater benefits.
However, if you are not eligible for FFCRA leave, you may be eligible for leave and benefits under the NYS Emergency Sick Leave if you work for:
- Any public agency (except for the federal government); or
- Private entity, regardless of size
- Qualify for a mandatory or precautionary order of quarantine or isolation by the state of New York, the department of health, a local board of health, or a government agency authorized to issue such an order because of COVID-19. To be entitled to this leave, workers must have documentation showing that they were eligible for an order into mandatory or precautionary quarantine or isolation by an authorized government agency—a general order to stay home is not sufficient. (NOTE: Although you must be eligible for a mandatory order of quarantine or isolation, New York guidance states you can use a health care provider’s advice while you apply for an order due to how overwhelmed departments of health are during this crisis.)
- You can get a mandatory order of quarantine if you have been in close contact with someone who has tested positive for COVID-19 but is not displaying symptoms.
- You can get a mandatory order of isolation if you have tested positive for COVID-19, whether or not you are displaying symptoms.
- You can get a precautionary order of quarantine if you have been exposed to (but have not had direct contact with) a person who has tested positive for COVID-19.
- NOTE: Although you are entitled to a mandatory order of quarantine when you return to the U.S. after return from a trip to a country that has a level 2 or 3 health notice from the Center for Disease Control and Prevention, that reason does not qualify you for New York State Emergency Sick Leave benefits if the trip was personal (non-business) and you were provided notice of the travel health notice.
- For information on obtaining an order of quarantine or isolation, see here.
You are not eligible for leave and benefits under NYS Emergency Sick Leave for the following reasons:
- you are not sick and can work remotely (or can otherwise work safely); or
- the order of quarantine or isolation is no longer in effect.
New York State Emergency Sick Leave covers the length of your quarantine or isolation order by providing sick pay directly from your employer for 5 calendar days if your employer has either between 11 and 99 employees, or 10 or fewer employees with a net annual income of more than $1 million in the last tax year, and 14 calendar days if your employer has 100 or more employees or a public employer of any size (other than the federal government). If your employer has 10 or fewer employees (and a net income of less than $1 million) or your quarantine/isolation order goes longer than what is required from your employer, you can apply for special paid family leave/temporary disability insurance benefits to cover the unpaid portion of the order.
If your minor child is eligible for a mandatory or precautionary order of quarantine or isolation and you must leave work to care for them and you work for a private sector (non-government) employer, you can apply for special paid family leave benefits during the period of quarantine or isolation.
You may be eligible for up to 40 hours of sick time if you are a New York City worker or Westchester County worker who works as an employee in either location for at least 80 hours in a year.
These laws apply if you are a full-time, part-time, or temporary worker. Both the New York City sick time law and the Westchester County sick time law make it clear that you can use the sick leave if as a result of a public health emergency your business is closed or your child’s school or place of care is closed.
In addition, the Westchester County paid sick time law allows sick time to be used when public health authorities determine that the employee’s or family member’s presence in the community may jeopardize the health of others because of exposure to a communicable disease whether or not the employee or family member has actually contracted the communicable disease. If your workplace has 5 or more workers, your employer must pay you for the time off.* If your workplace has fewer than 5 workers, your sick time may be unpaid—but you can’t be fired or punished for taking it. You can find more information about New York City’s sick time law here. You can find more information about Westchester County’s sick time law here.
* There are some exceptions to the New York City law; it does not cover: Federal, state, and municipal workers; students in federal work-study programs and recipients of certain fellowships/scholarships; independent contractors (note that employers sometimes incorrectly label employees as independent contractors; check with an attorney if you have questions); participants in a Work Experience Program (WEP); certain occupational, speech, and physical therapists.
Frequently Asked Questions About These Rights
FFCRA: If you work for an employer with fewer than 500 employees or for the government (and health care provider or emergency responder exemptions do not apply to you), you can receive 80 hours (10 eight-hour work days) of emergency paid sick leave off from your employer if you work full time, regardless of when you started working there. If you work part time for a qualifying employer, you can receive a proportional amount of time based on the average number of hours you work within a two-week period, regardless of when you started working there. You must be paid 100% of either your regular rate of pay or the federal, state, or local minimum wage where you are employed (whichever one is greater). However, your employer isn’t obligated under emergency paid sick leave to pay you more than $511 per day ($5,110 total) for personal care, meaning caring for yourself not others.
New York State Emergency Sick Leave: If you work for an employer with more than 500 employees or are a health care worker or emergency responder not covered by FFCRA or are not eligible for FFCRA sick leave for any other reasons, you may be eligible for New York State emergency sick leave IF you can obtain a specific, personal government-issued mandatory or precautionary order of quarantine or isolation.
Note: A general order to stay home such as the PAUSE order from Governor Cuomo does not qualify. However, if you have been advised to self-isolate by a doctor due to coronavirus symptoms or exposure, you can use that order to obtain emergency paid sick leave benefits and, in the meantime, seek a more formal order of personal quarantine from your board of health or department of health.
If you have personally been issued a mandatory or precautionary order of quarantine or isolation, and the duration of that order is longer than the period for which you can use emergency sick leave (see below at Question 5 for length of emergency sick time benefits under New York State law), then you may be eligible for special temporary disability and paid family leave benefits simultaneously. You can only receive special disability or paid family leave benefits if you apply (typically to your employer’s insurance carrier), and can only receive them while the order of quarantine or isolation is in effect. There is no waiting period for special temporary disability benefits. If you are eligible for emergency paid sick leave, then you must exhaust your emergency paid sick leave before using special TDI/PFL benefits (but not other employer provided leave).
Note: If you are eligible for FFCRA and the order or quarantine or isolation is longer than the 80 hours available under FFCRA, you can be eligible for the extended paid leave available under the New York Emergency Sick Leave program by applying for special TDI/PFL as stated above for the rest of your quarantine/isolation order.
If you take emergency sick leave that is paid by your employer, your employer will pay you the same amount of pay that you would ordinarily have received during your period of leave. If you are eligible to receive special disability and paid family leave benefits, you can receive special paid family leave benefits equal to 60% of your pay, up to $840.70/week. In addition, you can receive special disability benefits in addition to special paid family leave for the amount of your wages not covered by special paid family leave, so that you receive benefits equal to a total of 100% of your pay, up to a total of $2,884.62/week (combined family leave and disability benefits).
NYC and Westchester Paid Safe & Sick Time: Both of these sick time laws give workers up to 40 hours of sick time in a year (earned at a rate of one hour for every 30 hours worked) to recover from physical/mental illness or injury, seek medical treatment, or care for a sick family member. Therefore, if you are experiencing symptoms or seeking a medical diagnosis you are entitled to use your sick time. However, if you are eligible for paid sick leave under FFCRA, you can take that sick leave first because that leave does not replace the sick time you are otherwise entitled to, and you may need your regular sick time later or for other purposes. Domestic workers are eligible for two paid sick days in addition to the three days of rest allowed generally under state law.
2. I am not currently able to work or telework because my child’s school or daycare is closed due to a public health crisis related to coronavirus, or my child’s childcare provider is unavailable due to the coronavirus. I am caring for that child. What can I do to receive income while I’m not working?
FFCRA: If you qualify for FFCRA (as noted above, generally if your employer has fewer than 500 employees or is a public agency, if you are not an exempted health care provider and, for these purposes, if your employer has fewer than 50 employers and does not qualify for an exemption because paying sick leave would threaten the ability of the business to function), you may use the emergency paid sick leave (80 hours if you are a full-time worker, or the amount of time and earnings you normally work in a two week period if you are a part-time worker). For these purposes, you must be paid 2/3 of the greater of either your regular rate of pay or the federal, state, or local minimum wage where you are employed. However, your employer isn’t obligated under emergency sick leave to pay you more than $200 per day ($2,000 total) if you are caring for your child.
If you have been employed by your employer for at least 30 days, then you may also be entitled to up to 12 weeks of emergency paid family leave for these purposes. You may be required to follow your employer’s notice procedures to use emergency paid family leave. However, the first ten days of emergency paid family leave doesn’t have to be paid. During these ten days, you may choose to use your emergency paid sick time described above, or any accrued vacation, personal, emergency sick, or medical leave as income. Afterwards, you must be paid at an amount no less than 2/3 of your regular rate of pay and based on the number of hours you would otherwise normally be scheduled. Under federal law, your employer isn’t obligated to provide emergency paid family leave in excess of $200 per day ($10,000 total). See Question #6 for pay rules for part-time workers and those with variable schedules.
If you are able to do some work during this time and your employer agrees, you can take the emergency paid family leave on an intermittent basis, meaning you can get full pay from your employer for the time you are able to work, but receive 2/3 pay for the time you need to care for your child. It should also be noted that the Department of Labor has taken the position that you may not be eligible for emergency paid family leave if you have already taken 12 weeks of FMLA leave during the last 12 months and that, additionally, if you take emergency paid family leave due to a school or day care closure now, this will count against your 12 weeks of FMLA leave for other purposes within the next year.
New York State Emergency Sick Leave: In most cases of school closure, New York State Emergency Sick Leave will not be available because it is necessary that there be a specific, personal mandatory or precautionary order of quarantine or isolation for the child you are caring for. However, if there is such an order directed at your child and you are not eligible for FFCRA benefits, you may be eligible for paid family leave benefits (not special TDI benefits).
NYC and Westchester County Paid Safe & Sick Time: Both the New York City Earned Safe and Sick Time Act and the Westchester County paid sick time law give workers the right to earn and use up to 40 hours of sick time in a year for a variety of sick and safe time purposes whether related to coronavirus or not, including when a worker’s child’s school/place of care is closed due to a public health emergency. If you qualify for both, you will need to decide as to whether you want to first use the FFCRA which will give you 2/3 of your pay but will not require exhausting your other sick leave benefits, or to first use the 40 hours of NYC or Westchester paid sick time which give you full pay but for a shorter time; depending on your circumstances, you may be able to take leave under both laws sequentially. There is no requirement that you use sick time to which you are entitled under local law before accessing the new FFCRA coronavirus leave. You can find more information on these permanent paid sick time laws here.
FFCRA: You may use your emergency paid sick leave (80 hours for full-time workers; the average hours and pay for a two-week period for part-time workers) for this reason at a rate of 2/3 of the greater of either your regular rate of pay or the federal, state, or local minimum wage where you are employed. However, your employer isn’t obligated under emergency paid sick leave to provide you more than $200 per day ($2,000 total) if you are caring for another individual.
You can take time under this provision to care for a member of your immediate family, someone with whom you share a home, or a similar person where your relationship creates the expectation you would care for that person if that person were quarantined or self-quarantined.
New York State Emergency Sick Leave/Special Paid Family Leave: The New York State Emergency Sick Leave law specifically allows paid family leave to be used to care for a minor dependent child who is personally subject to an order or quarantine or isolation due to COVID-19. Therefore, if the person you are caring for is a minor dependent child and is qualified for such a specific order (and you are not otherwise eligible for FFCRA benefits for this purpose or the New York benefits are greater or for a longer period of time) you may be eligible for paid family leave benefits (not special TDI benefits).
Non-Emergency NYS Paid Family Leave might be available if the individual you are caring for is a family member (child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent). New York’s Paid Family Leave law provides leave rights that may be useful if you need time off to care for a covered family member. New York’s Paid Family Leave law guarantees covered workers time off to, among other things, care for a seriously ill family member. A COVID-19 diagnosis is a serious health condition under the Paid Family Leave law. Accordingly, if a family member is diagnosed with COVID-19, covered workers can take New York Paid Family Leave to care for them. For more about New York Paid Family Leave, see here.
NYC Paid Safe & Sick Time: You can use regular paid sick time (up to 40 hours or most employees, or the same amount of unpaid sick time if your employer is smaller than 5 employees; domestic workers are eligible to receive up to two paid sick days) to care for a family member (child, spouse, domestic partner, parent, parent or child of a spouse or domestic partner, grandchild, grandparent, or sibling or someone related to you by blood or people whose relationship to you is like a family a relationship) who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care. It can be argued that the need to stay home due to a doctor’s order about your family member’s health condition is covered.
Westchester County Paid Sick and Safe Time. It is even clearer in Westchester County that regular sick leave covers this situation as sick leave can be used to care for a family member (child, spouse, domestic partner, parent, parent or child of a spouse or domestic partner, grandchild, grandparent, sibling, certain relatives by blood or marriage, a former spouse or domestic partner, co-parent, and certain current or former significant others) whose presence in the community presents a public health risk because of exposure to a communicable disease (regardless of whether the individual has contracted the disease).
FFCRA: You can use emergency paid sick leave under the FFCRA if a health care provider has advised you to self-quarantine because you are particularly vulnerable to coronavirus and you cannot work or telework while self-quarantining. In addition, if you are afraid to go to work because you have a disability and may be more at risk than others, please see this page about the Americans with Disabilities Act.
New York State Emergency Sick Leave: Not available for this purpose.
NYC Safe & Sick Time: Under the regular paid sick time law in New York City you can use sick time to care for your own health condition, so you should be able to use paid sick leave in this situation where a doctor has advised quarantine due to a health condition.
Westchester County, NY Sick Time: Yes, you can use up to 40 hours of sick time a year, which can be used when a public health authority determines that your presence in the community presents a public health risk because of exposure to a communicable disease (regardless of whether you have contracted the disease).
You are entitled to leave under the NYS Emergency Sick Leave Law for the duration of your quarantine/isolation order but the way in which you can access the emergency sick leave and how much money you are eligible for depends on the size or nature of your employer:
- If your employer has 10 or fewer employees (with net annual income of less than $1 million in the last tax year), you can apply to receive temporary disability and paid family leave benefits that become payable on your first full day of unpaid quarantine or isolation. Although your employer is not obligated to pay you, you can take unpaid sick leave for the duration of your quarantine or isolation order.
- If your employer has between 11 and 99 employees or your employer has a net annual income of more than $1 million, you can take paid sick leave for a period of 5 calendar days, followed by unpaid sick leave for the remainder of the quarantine/isolation order. If your quarantine or isolation lasts longer than 5 days, you can apply to receive disability and paid family leave benefits that become payable on your first full day of unpaid quarantine or isolation.
- If your employer has 100 or more employees, you can take paid sick leave for a period of 14 calendar days during the quarantine/isolation order.
- If you work for a public employer, such as a school district, you can take paid sick leave for a period of 14 calendar days during the quarantine/isolation order.
If your minor child is eligible for a mandatory or precautionary order of quarantine or isolation and you must leave work to care for them and you work for a private sector (non-government) employer, you can apply for special paid family leave benefits during the period of quarantine or isolation.
NYS Emergency Sick Leave: No. Under the law, part-time employees should be paid the normal rate they would be paid for the amount of time during the 5 or 14 calendar day period, depending on the size of their employer.
NYC and Westchester County Paid Safe & Sick Time: Part time workers will earn the same rate of pay they normally earn for the hours for which they take sick time under the law.
Under all of these laws, you are entitled to return to your job and are protected against retaliation after you have taken emergency sick leave or have received special disability and paid family leave benefits. You are also entitled to continuation of your health insurance while you are on leave under any of these laws. Any leave under any of these laws should not be counted as an absence that may lead to or result in discipline, discharge, demotion, or any other adverse action.
FFCRA: If you use emergency paid family leave, then your employer must restore you to your job position or to an equivalent position with equivalent employment benefits, pay, and other terms/conditions of employment. There is a limited exception to the right to be reinstated, but not to the protection against retaliation or the right to continuation of health insurance, for workplaces with less than 25 employees. See here for more information.
FFCRA: Your employer can’t force you to use your PTO, accrued annual leave, or other paid sick time before using any emergency sick time under the law. Also, your employer can’t require you to find a replacement to cover the hours you are using leave.
New York State Emergency Sick Leave: No, you are not required to use your accrued sick leave or other accrued paid leave that your employer may provide. Emergency sick leave provided by your employer is available for immediate use, regardless of how long you have been employed; if your benefits are provided through special paid family leave or temporary disability benefits, you may need to have been employed by your employer for a certain period of time to qualify. The New York State Emergency Sick Leave Law offers emergency leave and benefits for eligible employees in addition to paid sick leave offered through employers. It does not count against your accrued sick leave or other paid time off. If you are also eligible for paid sick leave through your employer, then you will receive the ordinary amount of pay for the specified period (5 or 14 calendar days).
FFCRA: As of April 1, 2020, emergency paid sick leave is available for immediate use by the employee, regardless of how long you have worked for your employer. Extended paid family and medical leave benefits cannot be used until and unless you have worked for 30 days for the employer.
NYS Emergency Sick Leave: As of March 18, emergency sick and special family leave or special temporary disability insurance benefits are immediately available if you qualify.
NYC Paid Safe & Sick Time: You begin earning sick time as soon as you begin employment and can start using sick time 120 days after you begin employment. If you know in advance that you will need sick time, your employer can require you to tell him/her up to 7 days before. Otherwise you can be required to tell your employer as soon as possible. If you use sick time for more than 3 work days in a row, your employer can require a note from a health care provider. The note does not need to describe the health issue—only your need for the amount of sick time taken.
Westchester County Sick Time: You can start earning sick time immediately, but cannot use it until 90 days after the start of your employment. If you use sick time for more than 3 consecutive work days, your employer can require a note from a health care provider. The note does not need to describe the health issue—only your need for the amount of sick time taken.
FFCRA: You may be eligible for a tax credit in an amount equal to 100% of a “sick leave equivalent amount” (or 67% for the family care provisions, where only 2/3 of compensation is available) or “family leave equivalent amount” based on days when you were unable to perform work for the reasons outlined above, up to certain caps and other conditions. However, you should know that businesses sometimes call people independent contractors who are actually employees under the law; if this is your situation, you may qualify for protections as an employee under other laws.
You also may be eligible for Pandemic Unemployment Assistance (PUA) under the CARES Act. See below for more information.
NYS Emergency Sick Leave: As a self-employed worker (including freelancers and independent contractors), you can receive special disability and paid family leave benefits if you have opted in to temporary disability insurance and paid family leave coverage by purchasing a policy. However, if you are not already opted into this program, you will not be covered for paid family leave benefits until you have carried coverage for two years unless you have recently (within the last 26 weeks) become self-employed; note that this waiting period does not apply to disability benefits.
You may also be eligible for unemployment benefits through the NY Department of Labor and the CARES Act (see below).
If you have lost your job because of COVID-19, you may be eligible for state unemployment insurance or benefits under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The CARES Act includes several provisions dealing with unemployment benefits that will be paid for by the federal government:
- Pandemic Emergency Unemployment Compensation (PEUC): Subject to certain requirements, workers can receive up to 13 weeks of additional benefits under their state unemployment insurance program after exhausting their regular unemployment insurance benefits.
- Pandemic Unemployment Assistance (PUA): Subject to certain requirements, workers who are not eligible for regular unemployment insurance will be eligible for special benefits for up to 39 weeks (counting any weeks that the worker received regular or PUEC unemployment benefits). These benefits will cover workers who are unable to work for one of several specific coronavirus related reasons. PUA will also provide benefits to those who are unemployed or cannot find work and do not qualify for regular unemployment insurance because they are self-employed, seeking part-time work, lack sufficient work history, or otherwise do not qualify. These benefits will cover the period from January 27, 2020 to December 31, 2020 and can be paid retroactively (although the additional $600 a week under PUC is not available for any workers until March 27).
- Pandemic Unemployment Compensation (PUC): Workers receiving either regular unemployment insurance (including PUEC) or PUA can receive an additional $600per week in addition to their regular benefit amount from March 27, 2020 until July 31, 2020.
FFCRA: You can file a complaint with the United States Department of Labor. Different procedures may apply for government employees. If your employer has more than 50 employees, you may also be able to file a lawsuit if your rights to emergency family leave have been violated.
New York State Emergency Sick Leave Law: If you believe your rights have been violated by your employer under the New York State Emergency Sick Leave Law, you can file a complaint with the New York State Department of Labor. If you believe an insurance carrier has wrongfully denied your claim for special paid family leave benefits, you can challenge that denial through arbitration.
NYC Earned Safe & Sick Time Act: You have two years after a violation of the law to enforce your rights under the NYC Earned Safe and Sick Time Act by filing a complaint with the New York City Department of Consumer and Worker Protection.
Westchester County Earned Sick Leave Law: You have two years after a violation of the law to enforce your rights under the Westchester County Earned Sick Leave Law by filing a complaint with the Westchester County Department of Consumer Protection.
All covered workers are protected against being fired or punished for using emergency sick leave or special disability and paid family leave benefits. If you have a problem—or want more information—call A Better Balance’s free legal clinic at 1-833-NEED-ABB.
Please note that this fact sheet does not represent an exhaustive overview of the emergency paid sick leave law described, and it does not constitute legal advice. It is possible that additional provisions not described in this fact sheet may apply to a worker’s specific circumstances or category of employment.