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

January 28, 2021Alerts

The New York State Department of Labor (NYDOL) issued new guidance on January 20 for employers regarding COVID-19 sick leave, which went into effect in March 2020.  As we previously reported and discussed, New York employers are required to provide paid and/or unpaid sick leave to employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (in addition to paid sick leave under state and/or city law). 

New York employers should review their policies and ensure that they comply with the new guidance, which clarifies certain issues regarding New York’s COVID-19 sick leave and seemingly imposes new obligations upon New York employers.  The guidance answers the following four questions:

  1. How many times may an employee be eligible for New York COVID-19 sick leave?

Employees may be eligible to take New York COVID-19 sick leave as many as three times if they are subject to three orders of quarantine or isolation due to COVID-19—but only if the second and/or third quarantine or isolation order is based on a positive diagnostic test result for COVID-19.  Thus, for example, it is possible that an employee of a large employer (e.g., 100 or more employees as of Jan. 1, 2020) may be entitled to as many as 42 days of paid leave under the New York COVID-19 sick leave law.  Prior to the issuance of this guidance, it was unclear whether employees could receive New York COVID-19 sick leave on multiple occasions.

  1. What is an employer’s obligation if an employee tests positive for COVID-19 after returning to work from a period of quarantine or isolation?

An employee who returns to work following a period of mandatory quarantine or isolation, but then subsequently tests positive for COVID-19, cannot report to work, automatically is subject to a mandatory order of isolation, and is entitled to New York COVID-19 sick leave (again).  The employee must provide documentation of the positive test result from a licensed medical provider or testing facility (unless the employer gave the employee the test).

  1. What is an employer’s obligation if an employee continues to test positive for COVID-19 after the employee’s quarantine or isolation period has ended?

Employees are not required by New York State to take a follow-up test to discontinue their quarantine or isolation.  However, if an employee does follow-up testing and continues to test positive for COVID-19 after the employee’s quarantine or isolation period has concluded, the employee is prohibited from returning to work.  In this scenario, the employee automatically is subject to a mandatory order of isolation and entitled to New York COVID-19 sick leave (again).  The employee must provide documentation of the positive test result from a licensed medical provider or testing facility (unless the employer gave the employee the test).

  1. What is an employer’s obligation if an employee is exposed or potentially exposed to COVID-19 but not (yet) subject to an order of quarantine or isolation?

Employees who are exposed or potentially exposed to COVID-19 and required by their employer to remain out of work (see our prior alert regarding New York’s quarantine guidelines) must be paid their regular rate of pay until: (a) they are permitted by their employer to return to work; or (b) they become subject to a mandatory or precautionary order of quarantine or isolation.  If (and when) employees become subject to such an order, then the employer is required to provide them with New York COVID-19 sick leave.

Employer Takeaways

In addition to clarifying employees’ eligibility for multiple leaves under the New York COVID-19 sick leave law, this new guidance appears to impose a new, additional paid leave requirement for employees who are exposed or potentially exposed to COVID-19, but not subject to an order of quarantine or isolation.

The NYDOL’s guidance contradicts the plain text of New York’s COVID-19 sick leave law in a number of ways.  Thus, it appears that the NYDOL exceeded its authority by, among other things, providing employees with up to 42 days of paid leave and advising that employers must continue paying their exposed or potentially employees despite such individuals not being subject to an order of quarantine or isolation. 

However, unless this new administrative guidance is successfully challenged (or rescinded), New York employers should be cautious in deviating from this guidance lest they become subject to the ire of the state government or plaintiffs’ attorneys.  As such, it is prudent for New York employers to comply with the guidance and consult with counsel regarding their leave obligations for specific employee situations.

For more information about this alert, please contact Jason B. Jendrewski at [email protected] or 212.878.7952, or any member of the firm’s New York Labor & Employment Group.