Since the beginning of the COVID-19 pandemic, New York State has mandated that employers provide job protected, and for most employers, paid COVID-19 sick leave to employees who could not work because they or their child are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“NY Quarantine Leave”). Our previous client alert regarding NY Quarantine Leave requirements can be found here.
Until recently, the obligation to provide NY Quarantine Leave was one-and-done – that is, once an employee used up the amount of required NY Quarantine Leave to which they were entitled (the “Initial NY Quarantine Leave Benefit”), the employer had no further obligation to provide additional NY Quarantine Leave even if the employee was subsequently subject to a COVID-19 quarantine or isolation order.
However, the New York State Department of Labor (“NYSDOL”) has now issued guidance that requires employers to provide employees with up to three (3) separate periods of NY Quarantine Leave under certain limited circumstances.
Specifically, employers must now provide an employee who exhausted their Initial NY Quarantine Leave Benefit with a second and third period of NY Quarantine Leave under the same terms as the Initial NY Quarantine Leave Benefit, including with respect to the length of time off and pay, if the employee falls into one of the following two categories:
- An employee who used and exhausted their Initial NY Quarantine Leave Benefit and returned to work, then subsequently receives a positive COVID-19 diagnostic test.
- An employee who used and exhausted their Initial NY Quarantine Leave Benefit but continues to test positive for COVID-19 after the end of their quarantine or isolation period.
To be eligible for a second or third period of NY Quarantine Leave, employees must provide documentation from a licensed medical provider or testing facility confirming the positive test, unless the test was administered by the employer. It should be noted that employees are not required to be tested before returning to work after a period of isolation or quarantine, aside from nursing home staff.
We emphasize that an employee who merely has close contact with someone with confirmed or suspected COVID-19 is not entitled to additional NY Quarantine Leave once their Initial NY Quarantine Leave Benefit is exhausted. Also, there is no requirement to provide NY Quarantine Leave to an employee who is capable of performing their job duties in quarantine.
The NYSDOL guidance also makes clear that if an employer directs an employee who is not otherwise subject to an order of quarantine to remain out of work due to exposure or potential exposure to COVID-19, regardless of whether the exposure occurred in the workplace, the employer must continue to pay the employee until (i) the employer permits the employee to return to work or (ii) the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which time the employee will receive sick leave as required by the NY Quarantine Leave law for the period of time the employee is subject to such order of quarantine or isolation.
Based on this new requirement, it is imperative that the business confirm whether the employee has a qualifying reason to use NY Quarantine Leave, consulting with counsel as appropriate, and consider carefully whether the business wants the employee to be out of work if it’s not clear whether they are required to quarantine under applicable government guidance.
We note that this NYSDOL guidance may be subject to legal challenge as it imposes new obligations upon employers that are not explicitly authorized in the NY Quarantine Leave law. However, in the interim, until this guidance is withdrawn or successfully challenged, employers should ensure their practices fall in line with the above guidance and consider updating their NY Quarantine Leave policies and practices accordingly.
* * *
If you have questions or would like additional information, please contact Ilan Weiser (iweiser@egsllp.com) or the primary EGS attorney with whom you work.
