Both the U.S. and New York governments passed COVID-19 related legislation in recent weeks affecting employee leave from work. These programs are designed to protect jobs and provide additional sources of income for employees and their families during the current pandemic. This post is intended to help clarify the new federal and state programs and how they interact with each other.
How Might These New Federal and State Leaves Apply to Farm Employees?
At this time, most farms and their employees are defined as “essential,” so farms are open for business and employees are working as normal. However, if farm employees or their family members become infected or quarantined due to COVID-19, these measures will begin to apply. The order in which they apply will be due to the particular facts and circumstances about the employer, the employee, and the reason for missing work. In most cases, the federal leave should be used first, followed by the temporary state requirements for what employers must provide during the COVID-19 pandemic.
New Federal Sick Leave & Family Medical Leave Act (FMLA) Policies
The U.S. House and Senate passed and the President signed Families First Coronavirus Response Act (FFCRA). FFRCA is effective April 1 to December 31, 2020. It applies to businesses with <500 employees and to all government employers. Businesses with <50 employees may get exemptions from FMLA provision if the Act will make the business nonviable. The FFCRA covers most employees, including H-2A. It includes provisions for paid sick leave and expanded FMLA, both of which can be reimbursed to employers through quarterly payroll tax withholdings.
Paid Sick Leave
Provides 80 hours of leave for employees unable to work (or telework) due to COVID-19. There are two types of leave provided:
- For sick employee, 100% pay for employee who is experiencing COVID-19 symptoms and awaiting diagnosis or quarantined (by government or health care provider), up to $511 daily and $5,110 total
- For employee providing care, 2/3 pay if caring for another person who is sick or quarantined, up to $200 daily and $2,000 total
The 80 hours of leave in FFCRA is in addition to other leave provided by the employer. The employer cannot force the employee to use other accrued leave first so normally the FFCRA leave would be used first.
Expanded FMLA
Expands FMLA providing up to 10 weeks of unpaid, job-protected leave, at 2/3 pay, to care for the employee’s child if the school or other child care provider is closed due to COVID-19. Employees must have worked at least 30 days to be eligible.
Employer Reimbursement
Employers can offset the cost of these new benefits by retaining funds from employees’ payroll withholdings, including: federal income tax, and both employer and employee shares of Social Security and Medicare tax. Basically, as employees use the sick and FMLA time, employers keep track of the costs. When quarterly payroll taxes come due the employer simply documents the cost of employee leave and subtracts it from the quarterly taxes due. If the quarterly tax withholding is smaller than the cost of employee leave, employers can file for an accelerated payment from the IRS.
- IRS factsheet and an FAQ about the tax credits for employers.
- U.S. Dept of Labor factsheets (some Spanish) and posters can be found here: https://www.dol.gov/agencies/whd/pandemic
New York State Emergency Leave Policies for Employee’s Own Quarantine or Isolation
New York passed a temporary law that is in effect only during the COVID-19 crisis. The law “guarantees job-protected paid leave to workers who are subject to a mandatory or precautionary order of quarantine or isolation for COVID-19, 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, or whose minor dependent child is under such an order.”
The amount of leave required varies by the size and net income of the employer as described in the following table. Job protection means that the employer must make the same job available to the employee when he or she returns from COVID-19 related leave.
| # Employees as of 1/1/2020 | Requirements |
| Small businesses with 10 or fewer employees and net annual income <$1Million | Job protection for the duration of the order of quarantine or isolation. Your employees can access benefits through your Paid Family Leave and disability benefits policy, for the duration of the order of quarantine or isolation. |
| Medium businesses with 11 to 99 employees, and small businesses (10 or fewer) with net income >$1Million | Job protection for the duration of the order of quarantine or isolation At least 5 days of paid sick leave Your employees can then access benefits through your Paid Family Leave and disability benefits policy. |
| Large businesses with 100 or more employees | Job protection for the duration of the order of quarantine or isolation At least 14 days of paid sick leave |
New York State Emergency Leave Policies for Quarantine/Isolation of an Employee’s Minor Dependent Child
Paid Family Leave (PFL) & Disability (DBL) may be available to help employees when they must miss work. This benefit is paid from the PFL and DBL insurance policies that all NY farm employers were required to put in place as of 1/1/2020. Employees must have worked the minimum of 26 weeks for those who work over 20 hours per week or 175 days for those who work less than 20 hours per week. The benefit is intended to pay:
- For quarantine or isolation of an employee’s minor dependent child.
- For employee’s own quarantine or isolation after available sick leave is exhausted.
Employers have responsibilities to support employee applications for these benefits. Your tasks include: informing employees about the benefit, completing part of the application form to document employee pay and sick time already used, and retaining documents for your records. See: https://paidfamilyleave.ny.gov/covid-19-paid-leave-guidance-employers.
Employees have other protections when using PFL of DBL, these include:
- Job protection. Employers must give employees the same job when they return from leave.
- No discrimination. Employers cannot discriminate against an employees because they used PFL or DBL.
- Continued health insurance. Employers must continue health care coverage while the employee is on leave.
New York Paid Family Leave COVID-19: Frequently Asked Questions
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By Richard Stup and Elizabeth Higgins, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
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