What Rights Concerning Leave From Work Does An Executive Or A Professional Have In New York?
In New York State, executives and professionals are considered employees. As a result, in New York, executives and professionals have the same rights to leave from work that other employees enjoy.
Laws requiring employers to allow workers to take, and to return to work after taking, medical leave, sick leave, or safe leave consist of federal laws (that is, laws that govern the entire country), New York State laws, and New York City laws.
Executives, professionals, and other employees in New York have rights to several types of medical leave and sick leave under the federal Family and Medical Leave Act, known as the FMLA. Employers with 50 or more employees must allow workers to take, and to return to their jobs after taking, as much as 12 weeks of unpaid leave in a 12-month period for the birth or adoption of a child, to care for a close family member who has a serious health condition, for an employee’s own serious health condition, or when a close family member is called to active military service. To be eligible for unpaid leave under the FMLA, the employee must have been employed for at least 12 months by the employer and must have at least 1,250 hours of service with the employer in the past 12 months.
New York State Law
Further, under the New York State Paid Family Leave law, all private employers in New York State and many public employers in New York State must allow employees to take, and to return to their jobs after taking, as much as twelve (12) weeks of paid leave in a 12-month period (1) to participate in providing care made necessary by a “serious health condition” of a child, spouse, domestic partner, parent, grandchild, grandparent, sibling, or parent of a spouse or domestic partner, (2) to bond with the employee’s child during the first 12 months after the child’s birth, or the first 12 months after the placement of the child for adoption or foster care with the employee, or (3) because of any “qualifying exigency” arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty in the U.S. Armed Forces.
Under the New York State Paid Family Leave Law, leave taken by an employee from work in the above circumstances is called “family care” leave.
The New York State Paid Family Leave Law applies to, among other entities, all nongovernmental employers having one or more employees.
Under New York State law, a full-time employee is eligible for family care leave when he or she has been employed for not less than 26 consecutive weeks. A part-time employee is eligible for family care leave when he or she has been employed for not less than 175 days.
Benefit amounts for family care leave are being phased in over several years, as follows:
Through December 31, 2019, workers are eligible for up to ten weeks of family care leave paid at 55% of the worker’s average weekly wage, up to a maximum of 55% of New York State’s average weekly wage.
Beginning on January 1, 2020 and continuing through December 31, 2020, employees are eligible for up to ten weeks of family care leave at 60% of the employee’s weekly wage, up to a maximum of 60% of New York State’s average weekly wage.
Beginning on January 1, 2021 and continuing thereafter, workers are eligible for up to twelve (12) weeks of family care leave at 67% of the employee’s average weekly wage, up to a maximum of 67% of New York State’s average weekly wage.
Further, New York’s COVID-19 Paid Sick Leave Law, N.Y. State Senate Bill S08091, N.Y. State Assembly Bill A10153, requires all employers in New York 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 New York’s 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 New York’s COVID-19 Paid Sick Leave Law:
- Nongovernmental employers in New York 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 paid sick 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 New York’s 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.
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 New York’s COVID-19 Paid Sick Leave Law, to paid or unpaid sick leave, family care leave, or short-term disability benefits.
New York City Law
In addition, under the New York City Earned Safe and Sick Time Act (“NYCESASTA”), employers in New York City that employee five or more employees must give each employee one hour of paid safe/sick time for every 30 hours worked, up to five days per calendar year.
Under NYCESASTA, an employee can take paid sick time for any of three 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;; (2) the care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care; or (3) closure of the employee’s place of business by order of a public official due to a public health emergency or the employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.
So, too, in New York City, when an employee or an employee’s family member has been the victim of a family offense matter (such as disorderly conduct or harassment), sexual offenses (such as sexual misconduct, rape, sexual abuse, or predatory sexual assault, whether actual or threatened), stalking, or human trafficking, the employee may use paid safe time for absence from work for any of the following purposes:
- to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
- to take part in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
- to meet with a lawyer or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
- to file a complaint or domestic incident report with law enforcement;
- to meet with a district attorney’s office;
- to enroll children in a new school; or
- to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
If you are an executive or a professional in the New York City metro area and you believe that you have been wrongfully terminated or that your employer has failed or refused to allow you to take, or to return to work after taking, leave from work, call New York City Wrongful Termination Lawyer David S. Rich at (347) 941-0760 today.
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