On January 20, 2021, the New York Department of Labor (“NY DOL”) issued new guidance on the New York COVID-19 Paid Sick Leave Law that purports to clarify the leave and benefits available to employees.
As you are aware, the law provides paid and unpaid sick leave with access to expanded paid family leave and temporary disability for employees subject to a mandatory or precautionary order of quarantine or isolation depending on the size of the employer. The NY DOL’s new guidance supplements prior guidance on the application of COVID-19 sick leave and addresses the following:
- The guidance confirms that an employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work (with the exception of nursing home staff) and that it is not recommended that employees be tested to discontinue isolation or quarantine.
- If an employee subsequently tests positive for COVID-19, they may not return to work. In that scenario, the employee is automatically deemed to be subject to a mandatory order of isolation from the NYS Department of Health and will be entitled to leave under the NYS COVID-19 sick leave law, whether or not the employee already has received sick leave for the first period of quarantine or isolation. In this case, the employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19.
- If after the conclusion of the period of quarantine or isolation an employee continues to test positive for COVID-19, the employee shall be deemed to be subject to a second mandatory order of isolation from the NYS Department of Health and will be entitled to sick leave for the second period of isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19.
- If an employer “mandates” an employee, who is not otherwise subject to a COVID-19 order, to remain out of work due to exposure or potential exposure to COVID-19, the guidance provides that employers should continue to pay the employee at the employee’s regular rate of pay until (a) the employer permits the employee to return to work, or (b) the employee becomes subject to a COVID-19 order. If the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, the employee will be entitled to receive New York COVID-19 paid sick leave.
- Pursuant to the guidance, employees cannot qualify for sick leave under New York’s COVID-19 sick leave law for more than three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test in accordance with the guidance.
What Employers Should Do Now
While the new guidance from the NY DOL arguably provides answers to questions companies are facing, it also appears to create obligations for employers that go beyond the law itself. Accordingly, the guidance may be subject to legal challenge since an agency like the NY DOL can only issue regulations that interpret a statute and cannot create obligations that go beyond the statutory requirements.
Nevertheless, the guidance reflects the NY DOL’s current position regarding COVID-19 sick leave and ignoring this could create legal problems for employers. Employers should continue to implement health and safety measures and procedures for employees and enforce health and safety plans in their workplaces, while adhering to the new guidance. We will continue to monitor further developments and/or clarification in this area and will keep you apprised of same. Should you have any questions regarding the new guidance and how it effects your company, please contact ALG.