The New York State Department of Labor recently updated its previously published COVID-related guidance to address how New York State employers should handle certain related COVID-19 sick leave issues.
This supplemented guidance, issued on January 20, 2021 and available HERE, boils down to four key takeaways:
An employee does not have to be tested to return to work following mandatory quarantine/isolation (with the exception of nursing home staff). And, further, an employee “is not recommended to be tested” to end isolation or quarantine.
An employee who was subject to a mandatory quarantine or isolation order and whoreceives a positive COVID-19 test (documented by a licensed medical provider/facility unless the employer is doing the testing) after completing the quarantine/ isolation period is automatically deemed subject to a mandatory order of isolation and therefore entitled to sick leave under the NY COVID-19 sick leave law, regardless of whether he/she received sick leave for the first period of quarantine/isolation.
An employee may only qualify for NY COVID-19 sick leave for three orders of quarantine/isolation. The second and third leaves require a documented positive COVID-19 test as above.
According to the new guidance, if an employer requires an employee who is not subject to a mandatory or precautionary order of quarantine/isolation to remain out of work due to a COVID-19 exposure or potential exposure (regardless of whether such exposure was in the workplace), the employer must continue to pay the employee at the employee’s regular rate of pay. If such guidance is followed, the employer’s obligation to pay would continue until the employer allows the employee to return OR he/she becomes subject to such an order (and then would be eligible for the NY COVID-19 sick leave, provided that he/she hasn’t already been subject to three orders). However, it should be noted that this provision in the guidance appears to go beyond the statute and, accordingly, we expect it to be subject to legal challenge.
As employers can see, there continues to be emerging COVID sick pay parameters that must be carefully followed. As further guidance is published, we will provide additional information as appropriate.
If you have any questions relating to this eAlert or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.
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