New York State is expanding its Paid Family Leave program (“PFL”) to cover situations where an employee’s family member is diagnosed with COVID-19. The expansion was announced early Tuesday morning by the N.Y. Workers’ Compensation Board, (the “Board”), the state agency charged with regulatory oversight of the state’s PFL program.

Specifically, the expansion is an amendment to the Board’s existing PFL regulations. The amendment clarifies that a “serious health condition” for PFL purposes will encompass “a COVID-19 diagnosis by a health care provider.” As a result, the amendment grants employees the ability to take leave under PFL if their family member is diagnosed with COVID-19. Critically, however, the amendment does not grant employees the ability to take leave under PFL for their own COVID-19 diagnosis—but employees in that circumstance would likely qualify for leave under the newly-enacted Paid Sick Leave provisions in the Federal Families First Coronavirus Response Act (FFCRA).

The amendment leaves no doubt that all diagnosable cases of COVID-19 will be treated as “serious health conditions,” for PFL purposes, regardless of the severity of an individual’s symptoms.

The amendment is also the second major change to New York PFL in the month of March. The first came in the State Legislature’s passage of the N.Y. Emergency Paid Sick Leave Act. The N.Y. Paid Sick Leave Act expanded PFL to allow leave where an employee or their minor child became subject to an official quarantine order issued by a government entity. This second change—the Board’s clarification that COVID-19 diagnoses will qualify as a “serious health condition”—will presumably account for situations where an individual has been diagnosed but is not under an official quarantine order.

PFL’s existing definition of “family member” will carry over into an employee’s need to take leave to care for a family member who has been diagnosed with COVID-19. PFL defines a “family member” as an employee’s spouse, domestic partner, child or stepchild, parent, step-parent, parent-in-law, grandparent, and grandchild.

Interplay with Federal Families First Coronavirus Response Act

The expansion of PFL will likely trigger employees’ concurrent usage of leave under PFL and Paid Sick Leave under the new FFCRA if an employee’s family member is diagnosed with COVID-19. Under the Paid Sick Leave provisions of the FFCRA, employees may take paid leave if (among other reasons) they have to care for an individual who has been advised by a health care provider to self-isolate. In all likelihood, any individual diagnosed with COVID-19 would also be advised by their health care provider to self-isolate.

As mentioned above, employees will still not be able to take leave under PFL if they are diagnosed with COVID-19. However, many employees will be eligible to take Paid Sick Leave under the FFCRA if they have been advised by a health care provider to self-isolate, or if they experience symptoms of COVID-19 and need to obtain a medical diagnosis.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.