Written by New York charter school attorney, Lisa J. Holtzmuller, the following is a comprehensive question and answer analysis of the Families First Coronavirus Response Act and New York Emergency Paid Sick Leave Legislation for New York charter schools.
The Families First Coronavirus Response Act (“FFCRA”) requires certain employers to provide employees with paid sick leave and expands the federal family and medical leave act to allow leave related to COVID-19. These provisions are effective as of April 1, 2020 and will remain in place until December 31, 2020. Generally, the FFCRA provides employees with up to 80 hours (or a two week equivalent for part-time employees) of paid sick leave and up to twelve weeks of expanded family medical leave.
In addition, New York enacted emergency paid sick leave legislation to provide sick leave and guaranty job protection to employees who are subject (or whose minor dependent child is subject) to a mandatory or precautionary order of quarantine of isolation for COVID-19 (“NY Quarantine Leave Law”). The NY Quarantine Leave Law also extends New York State disability benefits and paid family leave benefits to certain employees who have been impacted by the COVID-19 pandemic. It is important to note that the NY Quarantine Leave Law reduces benefits available to employees by the amounts received for overlapping leave reasons under federal law, which includes the FFCRA.
Charter schools are encouraged to review the interplay between the FFCRA, the NY Quarantine Leave Law and other paid leave laws offered to employees pursuant to federal, state and local law, as well as pursuant to their own employment policies. Because this is a rapidly changing area of law, schools are encouraged to review updated federal guidance posted at https://www.dol.gov/agencies/whd/pandemic and updated New York State guidance posted at https://paidfamilyleave.ny.gov/COVID19.
Q1. Are charter schools operating in the State of New York subject to FFCRA?
A. Most charter schools in New York will be subject to FFCRA. FFCRA applies to organizations who employ fewer than 500 employees. This threshold includes full-time employees, part-time employees and temporary employees.
In addition, if there is a joint employment relationship (regardless of whether the employees are maintained on only one organization’s payroll), these employees should be counted as employees of the organization. If you operate multiple charter schools under one education corporation, all of your employees should be counted towards the 500-employee threshold. Whether affiliated organizations (including charter management organizations and the schools they manage) will be deemed joint employers requires a fact-sensitive analysis that focuses on how the different entities are organized and whether there is a joint employment relationship pursuant to federal law (under the Fair Labor Standards Act (FLSA) and/or the Family Medical Leave Act of 1993, as amended (FMLA)).
It is important to note that even if a charter school is not subject to FFCRA because of its large size, it will still be subject to New York’s Quarantine Leave Law and which addresses COVID-19 related leaves.
Q2. If my charter school has fewer than 50 employees, is the school subject to FFCRA?
A. Typically, charter schools are not required to provide leave under the Family Medical Leave Act if they have fewer than 50 employees. This exception is not applicable under FFCRA. However, if providing child care-related paid sick leave and expanded family and medical leave would jeopardize the charter school’s viability as a going concern, there is a small business exception which allows the school to opt out of providing such leave. In order to claim the exemption, an authorized officer of the business must determine that: (i) the provision of paid sick leave or expanded family and medical leave would result in the school’s expenses and financial obligations exceeding available business revenues and cause the school to cease operating at a minimal capacity; (ii) the absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the school because of their specialized skills, knowledge of the business, or responsibilities; or (iii) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the school to operate at a minimal capacity.
Q3. How much leave will be given to employees under FFCRA?
A. Employees will generally be eligible for up to two weeks (up to a maximum of 80 hours) of paid sick leave and up to an additional 10 weeks of paid expanded leave and medical leave under the expanded family and medical leave for COVID-19 qualifying reasons.
Q4. Are all employees of the charter school eligible for leave under FFCRA?
A. Leave is available for full-time, part-time and temporary employees of the school. However, it is only required to provide leave to an employee that has been employed for the organization for at least 30 days (i.e., the employee must be on the school’s payroll for the 30 calendar days immediately prior to the day the leave begins).
Q5. What are the COVID-19 qualifying reasons that will allow employees to take paid sick leave (up to 80 hours) under FFCRA?
A. Under the FFCRA, an employee qualifies for two weeks of paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine related to COVID-19;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Q6. What are the COVID-19 qualifying reasons that will allow employees to take expanded family and medical leave under FFCRA?
A. Under the FFCRA, an employee qualifies for expanded family medical leave (up to an additional ten weeks after the expiration of the two weeks of paid sick time) if the employee is unable to work (or unable to telework) due to a need for leave because the employee is caring for a child whose school or place of care is closed (or child care provide is unavailable) for reasons related to COVID-19. Note, the additional ten weeks of leave is not available if the employee is unable to work due to reasons 1-4 or 6.
Q7. How much is a charter school required to pay employees for the various types of COVID-19 leaves?
A. If an employee qualifies for paid sick time for reasons (1), (2) or (3) listed above, the employee will be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
If an employee qualifies for paid sick leave for reasons (4) or (6) listed above, the employee will be paid at either 2/3 of the employee’s regular rate or 2/3 of the applicable minimum wage, whichever is higher, up to $200 per day and $2000 in the aggregate (over a 2-week period).
If an employee qualifies for leave for reason (5) listed above, the employee will be paid at either 2/3 of the employees regular rate or 2/3 of the applicable minimum wage, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
Q8. How should the school determine the regular rate of pay and hours to be counted for purposes of paid sick leave or expanded family medical leave under FFCRA?
A. The regular rate of pay used to calculate paid leave under FCCRA is the average the employee’s regular rate over a period of up to six months prior to the date leave commences. If an employee has worked for your school for less than six months, the regular rate of pay is determined by averaging the regular rate of pay for each week worked for the school. You can also compute this amount for each employee by adding all compensation that is part of the regular rate over 6 months (or the lesser period for newer employees) and divide that sum by all hours actually worked in such period.
For the purposes of calculating two weeks of paid sick leave, the law differentiates between full-time and part-time employees. A part-time employee (an employee who is normally scheduled to work less than 40 hours per week) is entitled to leave for his or her average number of hours the employee is normally scheduled to work in a two-week period. If the employee’s schedule varies, a six-month average should be used to calculate the average daily hours. Paid sick leave (for the first two weeks) and expanded family and medical leave (for the next ten weeks) shall be based on this number of hours. If an employee is normally scheduled to work overtime hours, these hours should count for the purpose of determining the average number of hours worked, but the school does not need to pay a premium for overtime hours. Also, it is important to remember hours paid under the Emergency Sick Leave Act is capped at 80 hours total.
Q9. If an employee is only paid their partial salary while receiving paid sick leave (during the first two weeks), can my employee elect to substitute this paid leave with accrued vacation leave, personal leave or sick leave?
A. Yes, an employee may elect to substitute the paid sick leave with any accrued vacation leave, personal leave or sick leave. However, employees are not entitled to reimbursement for any unused FCCRA leave upon termination, resignation of retirement from employment. In addition, a school could choose to supplement the amount received under FCCRA, but cannot force an employee to use pre-existing leave benefit (sick leave, paid-time off, etc.). Please also note that the tax credit can only be claimed for FFCRA paid leave, not supplemental leave provided by the employer in excess of the amount available under FFCRA.
Q10. What notice, if any, must an employee provide in connection with taking paid sick leave or expanded family and medical leave?
A. Employees are required to provide their employer with notice of such request, which shall include their name, the qualifying reason for such leave, a statement that the employee is unable to work and/or telework, as a result of such qualifying reason, and the dates for which leave is requested.
Q11. What documentation must the employee provide in connection with such paid sick leave or expanded family and medical leave?
A. The type of documentation required to be provided by an employee taking leave depends largely on the qualifying reason for such leave. For example, if taken leave for reasons (1) or (2) listed above in Question 5, the employee must provide the source of any quarantine or isolation order or the name of the health care provider who advised the employee to self-quarantine. If your employees has taken leave for reason (5) listed above, you should request evidence of such closure, which could be a notice posted on a government, school or daycare website. This could also include an email from an authorized representative of the day care provider. This information should be retained and may be required in connection with claiming the tax credit.
All existing certification requirements under FMLA remain in effect if an employee is taking leave for one of the pre-existing qualifying reasons under FMLA. For example, if the employee is taking leave beyond the two weeks of paid sick leave because his or her medical condition for COVID-19-related reasons rises to the level of a serious health condition, appropriate medical certifications under FMLA may still be requested by the school.
Q12. Are schools required to notify their employees of FFCRA?
A. Yes, you must provide all current employees with notice of FFCRA. The poster provided by the Department of Labor can be found here. You may satisfy this requirement by emailing or direct mailing this notice to employees or posting it on an internal or external website. Please note that if you hire any new employees, this notice must be conveyed to this new hire. The deadline for posting the notice is April 1, 2020.
Q13. If an employee qualifies for leave under multiple categories listed above, can he or she take more than 80 hours of paid sick leave?
A. No. An employee is only eligible for 80 hours of paid sick leave in the aggregate under FFCRA. An eligible employee may be eligible for an additional ten weeks of leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19 (i.e., an employee who is caring for a child whose school or place of care is closed is eligible for a total of 12 weeks of paid leave under FFCRA). In addition, an eligible employee may be eligible for additional paid family leave under New York’s paid family leave law or to take other accrued vacation, personal or sick leave provided to employees of the school.
Q14. If an employee already took paid leave for a qualifying reason prior to April 1st, is that employee eligible for additional paid time off pursuant to FFCRA?
A. FFCRA imposes a new leave requirement on employers that is effective beginning on April 1, 2020. This means that an employee who already took paid time off or sick leave prior to April 1st is still eligible for the maximum about of leave he or she is eligible for under the Act. The right to paid sick leave and expanded family and medical leave is not retroactive.
Q15. What benefit, if any, will the charter school obtain for providing leave required under FFCRA?
A. A charter school who pays their employees who take leave under FFCRA for a qualifying reasons (see reasons 1-6 above in Question 5) will be eligible for a dollar-for-dollar reimbursement through tax credits (against payroll taxes) for up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.
Q16. Are employees who are able to work remotely (telework) eligible to take leave under FFCRA?
A. If a charter school permits employees to perform work at home or at a location other than the employee’s normal workplace (and for which normal wages are paid), then if an employee is unable to work (or telework) for a COVID-19 qualifying reason, he or she eligible for leave under the FFCRA. Please note that if an employee has symptoms related to COVID-19 but is still able to telework or has a child out of school or daycare but is still able to telework, such employee would not be entitled to leave under FFCRA.
Q17. Under the FFCRA, what does it mean to be unable to work, including telework, for a COVID-19 related reason?
A. An employee is unable to work if the charter school has work for such employee and one of the six COVID-19 qualifying reasons set forth above prevents the employee from being able to perform work, either at the employee’s normal workplace or through teleworking.
Q18. If a charter school enters into an arrangement with an employee to work the employee’s normal hours at an alternative time of day (e.g., if the school allows an employee to work mornings and evenings instead of the regular school day), is paid sick leave or extended paid family leave available under FFCRA?
A. If an employee and school agree to an alternative schedule, paid sick leave and/or extended paid family leave under FFCRA would only be available if the employee was unable to perform work as a result of one of the six COVID-19 qualifying reasons.
Q19. Can an employee take paid sick leave or expanded family medical leave under the FFCRA on an intermittent basis?
A. If an employee is teleworking and is unable to work his or her normal work schedule as a result of a COVID-19 qualifying reason (see Question 5 above), an employer may agree to allow such employee to take paid sick leave or expanded leave on an intermittent basis. For example, if as a result of an employee’s children being at home as a result of COVID-19 related daycare closure, such employee can only telework from 9:00 a.m to 12:00 p.m. each day, if the school agrees, the employee is eligible to take leave under the FCRRA on an intermittent basis for the remainder of the school day. While each charter school has ultimate decision-making authority as to whether it will agree any intermittent leave, the Department of Labor is encouraging employers and employees to collaborate to achieve flexibility and mutual needs.
If an employee is not teleworking but is working at his or her normal place of business, unless such employee is taking paid sick leave for Covid-19 qualifying reason (5) listed above is Question 5, paid sick leave cannot be taken on an intermittent basis. In such case, after one day of paid sick leave is taken, the remainder of paid sick leave must be taken immediately thereafter until the employee either (i) uses the full amount of the sick leave or (ii) the qualifying reason for such sick leave no longer exists. The rationale behind this requirement is to prevent employees from spreading the virus once a COVID-19 qualifying reason for leave exists. If an employee is taking paid sick leave to take care of their child whose school or daycare is closed for a COVID-related reason, intermittent leave is permitted provided the school and employee can agree to a schedule for such leave to be taken.
Q20. What if an employee takes only half of his or her paid sick leave before the qualifying COVID-19 qualifying reason for such paid sick leave no longer exists?
A. An employee only has the right to take paid sick leave while a COVID-19 qualifying reason for such paid sick leave exists. A person may use any remaining paid sick leave days beginning on a later date (provided such leave is taken before December 31, 2020) if another qualifying reason occurs.
Q21. If a charter school terminated or furloughed an employee prior to April 1, 2020, is such employee eligible for leave under the FFCRA?
A. No, if an employee was terminated or furloughed prior to April 1, 2020 because there was no work for the employee (teleworking or otherwise), he or she is not eligible for leave under FFCRA. Such employee may be eligible for unemployment insurance.
Q22. Are charter schools required to continue health care coverage while an employee is on leave pursuant to FFCRA?
A. Yes, the school must continue to provide health care coverage on the same terms as was provided while such employee was working provided the school can require the employee to continue to make the same employee-contributions as were being made prior to leave.
Q23. Can an employee use a charter school’s pre-existing leave entitlements concurrently with FFCRA leave?
A. An employee cannot take any pre-existing paid leave (paid sick leave, accrued vacation, New York Paid Family Leave) at the same time as leave under FFCRA unless the school specifically authorizes such leaves to be taken simultaneously. A school may permit (but is not require to permit) employees to supplement paid sick leave or expanded family leave with pre-existing paid leave so that employees receive their full normal earnings for each hour of work. However, a school cannot force an employee to use existing leave that was already provided by the school to supplement FFCRA. Please remember that FFCRA provides leave benefits to employees in addition to all pre-existing benefits.
Q24. If an employee has already taken 12 weeks of FMLA leave this calendar year for a reason unrelated to COVID-19, is such employee eligible for an additional 12 weeks of leave under the expanded family and medical leave under FFCRA?
A. No, an employee is only entitled to 12 works weeks of FMLA leave during a 12-month period, including expanded family and medical leave under FFCRA. The employee would still be eligible for two weeks of paid sick leave to care for a child whose school or child care provider is closed or unavailable pursuant to FFCRA even if he or she had exhausted any FMLA leave for which such employee was entitled.
Q25. What if a charter schools already provides 80 hours of paid sick leave?
A. Paid sick leave under FFCRA is in addition to any other leave provided under federal, state or local law or pursuant to the school’s existing policy. Therefore, if a school already provides for 80 hours of paid sick leave, an employee may be eligible for up to 160 hours of paid sick leave depending on if they qualify for leave under both policies.
Q26. Will my charter school by subject to penalties for not complying with FFCRA?
A. The Department of Labor has agreed to provide employers with a 30-day period to comply with the law. This means the Department will not bring an enforcement action so long as an employer has acted reasonably and in good faith to comply with FFCRA.
Q27. Are charter schools operating in the State of New York subject to the NY Quarantine Leave Law?
A. Yes, all employers operating in New York are subject to the NY Quarantine Leave Law. The leave provided for in the NY Quarantine Leave Law is in addition to any other leave provided under federal (except for FFCRA), state or local law or pursuant to the school’s existing policy. However, the benefits that an employer is required to provide depends on whether they are considered a private or public employer, how many employees are employed by the organization, and their revenues. Specifically, the law provides that if an employee is under a mandatory or precautionary order of quarantine or isolation issued by the State, the New York State Department of Health, local Board of Health or other authorized government entity, the employee may be eligible for paid sick leave and additional disability and paid family leave benefits.
- Private employers with 10 or fewer employees (as of January 1, 2020) and revenues of $1,000,000 or less in 2019 are required to provide qualifying employees five days of paid sick leave. After the sick days are used, the employee may be eligible for compensation for the remainder of the quarantine by applying for Paid Family Leave and disability benefits.
- Private employers with 10 or fewer employees (as of January 1, 2020) and revenues of more than $1,000,000 in 2019 are required to provide qualifying employees five days of paid sick leave. After the sick days are used, the employee may be eligible for compensation for the remainder of the quarantine by applying for Paid Family Leave and disability benefits.
- Private employers with between 11 and 99 employees (as of January 1, 2020) are required to provide qualifying employees with five days of paid sick leave. After the sick days are used, the employee may be eligible for a combination of Paid Family Leave and disability benefits.
- Private employers with 100 or more employees (as of January 1, 2020) are required to provide qualifying employees with 14 days of paid sick leave. Employee are not eligible to supplement such leave with Paid Family Leave and disability benefits (the rationale being that the 14 day sick leave should cover the duration of any quarantine order).
- Public employers, regardless of the number of employees such public organization employs, are required to provide qualifying employees with 14 days of paid sick leave. Public employees are not eligible to supplement such leave with Paid Family leave and disability benefits (the rationale being that the 14 day sick leave should cover the duration of any quarantine order).
Q28. Are charter schools considered public or private employers for the purpose of this law?
A. Under the new law, a public employer is defined as follows:
“(i) the state; (ii) a county, city, town or village; (iii) a school district, board of cooperative educational services, vocational education and extension board or a school district as enumerated in section 1 of charter 566 of the laws of 1967, as amended; (iv) any governmental entity operating a college or university; (v) a public improvement or special district including police or fire districts; (vi) a public authority, commission or public benefit corporation; or (vii) any other public corporation, agency, instrumentality or unit of government which exercises governmental power under the laws of the state.”
A charter school is not explicitly defined as a public employer in the new law. Whether a charter school is a public or private corporation in New York is a question that has been debated by schools, courts and government agencies within the State for many years. Please note that a similar analysis needs to occur to determine whether charter schools are eligible for small business loans under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. We will be seeking guidance on this issue from the appropriate governmental agencies and will update this FAQ upon receiving further information.
Q29. How much does a school need to pay its employees under the NY Quarantine Leave Law?
A. Schools should pay each eligible employee the amount such employee would have otherwise received from the school had they continued to work his or her normal schedule. Salaried employees or employees paid a fixed wage should continue to receive pay for the applicable period. Schools should determine the average daily rate of pay for part-time employees and employees paid on an hourly basis by looking at a representative period of time.
Q30. When are employees allowed to begin taking leave under the NY Quarantine Leave Law?
A. Immediately, provided the employee is under a mandatory or precautionary order or quarantine or isolation issued by the State, Department of Health, local Board of Health, or government entity. This is the case even if the governmental order was issued prior to the enactment of the law.
Q31. Am I eligible for leave under New York law if my child is under a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19 (a “Quarantine Order”)?
A. Such employee will not be eligible for paid sick leave under the Quarantine Leave Law unless the employee him or herself is subject to the Quarantine Order, but the employee may be eligible for extended paid family leave. The process for providing the employee with New York paid family leave benefits is largely the same as the process for taking paid family leave for other qualifying reasons, except there are new forms and attestations required in connection with the quarantine leave.
Q32. Have New York charter schools been closed as a result of a Quarantine Order?
A. While Governor Andrew Cuomo has ordered that all New York State schools close beginning on March 18th, there is technically no “order of mandatory or precautionary quarantine.” Therefore, it is difficult to evaluate at this time whether these current school closures qualify employees for leave under the NY Quarantine Leave Law. Upon receipt of additional guidance from the State of New York, we will update this section.
Additionally, in guidance issued March 27th, the State of New York adopted a specific protocol for employees seeking to obtain a Quarantine Order that would qualify them for benefits under the law. This process entails first contacting their local health department. If the local health department is unable to immediately provide the employee an order, the employee may use an alternative process outlined in the guidance.
Q33. If an employee can telework while there is a Quarantine Order, is such employee eligible for leave under the NY Quarantine Leave Law?
A. An employee who is subject to a Quarantine Order but is otherwise asymptomatic and able to work remotely is not eligible for leave under the NY Quarantine Leave Law.
Q34. If an employee decides to self-isolate without being subject to a Quarantine Order, is such employee eligible for leave under the NY Quarantine Leave Law?
A. An employee who decides to self-isolate without being subject to a Quarantine Order is not eligible for leave under the NY Quarantine Leave Law.
Q35. Once an eligible employee takes the time allotted to him or her for sick days under the NY Quarantine Leave Law (or through a combination of sick days under the NY Quarantine Leave Law and FFCRA), are there any other benefits that would provide such an employee with additional monetary or leave benefits?
A. If an employee exhausts his or her paid sick days under the NY Quarantine Leave Law, he or she may be eligible for benefits under New York’s statutory disability and paid family leave laws. Unlike when an employee has taken disability and paid family leave benefits in the past, eligible employees may receive these two benefits concurrently.
Q36. How does the FFCRA Interact with the NY Paid Sick Time Plan?
A. If an employer is covered by the federal and state leave laws, an employee’s use of paid leave runs concurrently under both laws. In that event, any benefit under the NY Quarantine Leave Law will be the incremental difference between full NY Quarantine Leave Law benefits and the benefits provided under the FFCRA.
Because charter schools with more than 500 employees are not covered under the FFCRA, eligible employees from those schools will need to rely solely on the benefits provided under the NY Quarantine Leave Law. Employees from smaller schools will be more likely to qualify for benefits under the FFCRA, with the NY Quarantine Leave Law benefits acting only to supplement such federal benefits.
Q37. How does the NY Quarantine Leave Law interact with the NYC Earned Safe and Sick Time Act?
A. Leave under the NY Quarantine Leave Law does not run concurrently with leave under the NYC Earned Safe and Sick Time Act. Therefore, additional sick days will need to be provided to eligible employees in order to be compliant with the NY Quarantine Leave Law.
For more information
New York schools with questions about compliance with these laws should reach out to Paul T. O’Neill, Jaime A. Fernand, or Lisa J. Holtzmuller. If you have questions about Massachusetts or Rhode Island school laws, please contact Matthew R. Plain, Greg Vanden-Eykel, or Rita E. Nerney at 888.273.9903.
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