May My Employer In Manhattan Suspend Me Without Pay For Contracting COVID-19?

Your employer in Manhattan may lawfully suspend you for contracting COVID-19, but your employer will likely need to pay you for at least a portion of the time that you are out of work.

The federal Americans with Disabilities Act (the “ADA”) allows employers to require employees to stay home if they have symptoms of COVID-19. The U.S. Centers for Disease Control (the “CDC”) states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

An ADA-covered employer may send employees home if they display influenza-like symptoms during a pandemic. Applying this principle to current CDC guidance on COVID-19, this means that an employer can send home an employee with COVID-19 or symptoms associated with it.

Similarly, an employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.

According to current CDC guidance, an individual with COVID-19 or symptoms associated with it should not be in the workplace.

Employers should also keep in mind that, under the New York Human Rights Law (the “NYCHRL”), policies that categorically exclude individuals on account of disability without an individualized assessment are unlawful. For example, a blanket policy prohibiting all employees with chronic kidney disease, a risk factor for severe illness from COVID-19, from returning to work would violate the NYCHRL.

Let’s turn to the issue of whether, should your employer in Manhattan suspend you for contracting COVID-19, your employer must pay you during your suspension.

Your rights to paid sick leave when you contract COVID-19 arise under three different statutes: the New York State Paid Sick Leave Law, the New York Earned Safe And Sick Time Act, and the New York State COVID-19 Paid Sick Leave Law.

The New York State Paid Sick Leave Law

In Manhattan, NYC, all private-sector workers are covered the New York State Paid Sick Leave Law, regardless of industry, occupation, part-time status, overtime-exempt status, or seasonal status.

The law requires employers with five or more employees to provide paid sick and safe leave. Businesses with fewer than five employees and a net income of $1 million or less must provide unpaid sick and safe leave to employees.

Contracting COVID-19 is a permissible reason to take paid sick leave under the New York State Paid Sick Leave Law.

More specifically, under the New York State Paid Sick Leave Law, employees receive an amount of sick leave depending on the size of their employer.

For employers with zero to four employees and a net income of $1 million or less in the previous tax year, the employer must provide up to 40 hours of unpaid sick leave per calendar year.

For employers with zero to four employees and a net income of greater than $1 million in the previous tax year, the employer must provide up to 40 hours of paid sick leave per calendar year.

For employers with five to 99 employees, the employer must provide up to 40 hours of paid sick leave per calendar year.

Finally, employers with 100 or more employees must provide up to 56 hours of paid sick leave per calendar year.

The New York Earned Safe And Sick Time Act

In addition, under the New York Earned Safe and Sick Time Act (“NYCESASTA”), employers in Manhattan that employ five or more employees must give each employee one hour of paid safe or sick time for every 30 hours worked, up to five days per calendar year.

Under NYCESASTA, an employee can take paid sick time for, among other purposes: (1) The employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care; or (2) closure of the employee’s place of business by order of a public official due to a public health emergency.

So, in Manhattan, NYC, when you contract COVID-19, you can take paid sick time.

The New York State COVID-19 Paid Sick Leave Law

Further, the New York State COVID-19 Paid Sick Leave Law, N.Y. State Senate Bill S08091, N.Y. State Assembly Bill A10153, requires all employers in Manhattan to allow employees, who are “subject to mandatory or precautionary orders of quarantine or isolation” because of COVID-19, to take, and to return to work after taking, paid or unpaid sick leave. So, too, the State’s COVID-19 Paid Sick Leave Law expands such quarantined or isolated employees’ eligibility for family care leave or short-term disability benefits.

The amount of leave available to quarantined or isolated employees under the New York State COVID-19 Paid Sick Leave Law varies depending on an employer’s net income and the number of employees that the employer employs.

Specifically, under the New York State COVID-19 Paid Sick Leave Law:

• Nongovernmental employers in Manhattan with ten or fewer employees (as of January 1, 2020) and a net annual income of $1,000,000 or less must provide unpaid sick leave for the whole period of an employee’s mandatory or precautionary quarantine or isolation, during which time the quarantined or isolated employee is also eligible for family care leave and short-term disability benefits.
• All private employers in the Empire State with 11 to 99 employees, and employers with ten or fewer employees (as of January 1, 2020) and a net annual income of more than $1,000,000, must provide five days of paidsick leave, and then unpaid sick leave for the remainder of an employee’s period of mandatory or precautionary quarantine or isolation. Once a quarantined or isolated worker has used up these five days of paid sick leave, the worker is also eligible for family care leave and short-term disability benefits.
• Nongovernmental employers with not fewer than 100 or employees (as of January 1, 2020), and governmental employers of all sizes, must provide not fewer than 14 days of paid sick leave during an employee’s mandatory or precautionary period of quarantine or isolation because of COVID-19.
• The above-described, statutory paid sick leave is in addition to any paid sick leave that a worker may have accrued under an employer’s policies.

For purposes of the New York State COVID-19 Paid Sick Leave Law, a “mandatory or precautionary order of quarantine or isolation” means a mandatory or precautionary order of quarantine or isolation issued by New York State, by the New York State Department of Health, by a local board of health, or by any governmental entity authorized to issue such orders because of COVID-19.

The New York State COVID-19 Paid Sick Leave Law contains an exception for private employers who have voluntarily closed business operations because of COVID-19 safety-related concerns. So if an employee is out of work because his or her employer chose to close, and the employee then contracts the coronavirus, the employee does not receive paid sick leave.

Further, an employee who “is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means,” is not entitled, under the State’s COVID-19 Paid Sick Leave Law, to paid or unpaid sick leave, family care leave, or short-term disability benefits.

To summarize, while your employer in Manhattan may lawfully suspend you for contracting COVID-19,

several New York State and Manhattan, NYC laws likely entitle you to be paid during at least a portion of that suspension.

If you are an executive or a professional in the Manhattan, NYC metro area and you believe that you have been wrongfully terminated, that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call Manhattan Employment Attorney David S. Rich at (347) 835-5688 today.

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