New York State Issues Guidance on Use of COVID-19 Sick Leave

Since March 2020, New York State law has required employers to provide job protected sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 and who are unable to telework (“COVID-19 Sick Leave”). Last week, the New York State Department of Labor issued additional guidance that appears to significantly expand employees’ entitlement to COVID-19 Sick Leave.

As New York employers will recall, the amount of COVID-19 Sick Leave, and the extent to which it is paid, depends on the size of the employer:

  • Employers with 10 or fewer employees and a net income of one million dollars or less in the prior tax year must provide unpaid sick leave until the termination of the order of quarantine or isolation. During the period of unpaid leave the employee is eligible for NYS paid family leave and disability benefits.

  • Employers with 10 or fewer employees and a net income of greater than one million dollars in the prior tax year, as well as employers with 11 to 99 employees, must provide at least 5 days of paid sick leave. After the 5 days of paid sick leave, the employee is eligible for NYS paid family leave and disability leave benefits for the remainder of the quarantine period.

  • Employers with 100 or more employees must provide at least 14 days of paid sick leave during the quarantine or isolation.

The new guidance addresses (1) the extent to which employees can take COVID-19 Sick Leave multiple times; (2) the apparent creation by the New York Department of Labor of a new COVID-19 leave entitlement; and (3) employee COVID-19 testing following a period of quarantine or isolation.

Multiple Instances of COVID-19 Sick Leave Permitted

Prior to this guidance, it was unclear if non-healthcare employees were able to take COVID-19 Sick Leave multiple times, or only for one instance of isolation or quarantine. The guidance clarifies that all employees may take COVID-19 Sick Leave up to three times, but only under the following limited circumstances.

  • An employee who has previously been subject to a period of mandatory quarantine or isolation and then either continues to test positive at the end of the quarantine period or who thereafter tests positive for COVID-19 is deemed to be subject to a new mandatory order of isolation from the Department of Health and entitled to COVID-19 Sick Leave.

  • To be eligible for COVID-19 Sick Leave under these circumstances, the employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19. Such documentation is not required if the employer administered the COVID-19 test that showed the positive result.  

  • In other words, an employee is entitled to a second (or third) period of COVID-19 Sick Leave only if the leave is for a quarantine because the employee tested positive for COVID-19 (as opposed to a quarantine based on exposure to COVID-19). However, as noted in the following section, there may be situations where an employer is required to provide paid leave to an employee when the employer wishes to exclude the employee from the workplace due to COVID-19 concerns.

Additional Employer-Paid COVID-19 Leave

The guidance also appears to create a new category of paid leave for employees: If an employer mandates that an employee who is not otherwise subject to a mandatory or precautionary order of quarantine or isolation remain out of work due to exposure or potential exposure to COVID-19, the employer must pay the employee at their regular rate of pay until (1) the employer permits the employee to return to work or (2) the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which point the employee may be eligible to receive COVID-19 Sick Leave.  The guidance makes clear that this payment obligation applies regardless of whether such exposure or potential exposure occurred in the workplace. 

Notably, the guidance does not state whether employees can be required to use other forms of available PTO during the period the employer mandates the employee remain out of work.

Employers should also be aware that because this new category of paid leave was not included in the original NY COVID Sick Leave Law, there is some question as to whether it can be enforced against employers in the first place, as typically new leave entitlements cannot be mandated through rulemaking or guidance.

Testing Requirements

The guidance notes that an employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested for COVID-19 as a condition of returning to work, except for nursing home staff. The guidance also states that it is not recommended that employees be tested for COVID-19 to discontinue isolation or quarantine, but does not provide any reasoning behind this recommendation.  Notably, this guidance does not prohibit employers from requiring a negative COVID-19 test as a condition of returning to work, and such a policy is still permitted under current EEOC guidance.

Employers should review their policies and procedures regarding leave related to COVID-19. If you have any questions regarding compliance with the new guidance, or require assistance amending your policies and procedures, please contact Amanda M. Baker at abaker@fglawllc.com, or any attorney at the Firm.

DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.

Amanda BakerSick Leave, Pandemic, Employee Health