New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”).

New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine.

Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs:

• An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of the quarantine order. The employee may also be eligible to receive compensation for the duration of the order through the employer’s PFL and DBL policies, for a maximum PFL benefit of $840.70 and maximum DBL benefit of $2,043.92, for a total of up to $2,884.62 per week.
• An employee who works for a medium-sized employer – one with 11-99 employees – or for an employer with ten or fewer employees (with a net income of greater than $1 million in the prior tax year) is entitled to at least five days of paid sick leave and, after those five days, compensation for the duration of the quarantine order, through the employer’s PFL and DBL policies, for a maximum DBL benefit of $2,043.92, and a maximum PFL benefit of $840.70, for a total of up to $2,884.62 per week.
• An employee who works for a large employer – one with 100 or more employees – is entitled to at least 14 calendar days of paid sick leave, the recommended length of a COVID-19 related quarantine or isolation period (meaning that the employer is only required to pay the employee the amount of money the employee would have earned during that time frame, as opposed to 14 business days of pay).

We note that the calculation of employees includes those working for an employer at locations within and outside of New York.

The COVID-19 sick leave law also provides leave to an employee who seeks to provide care for his or her minor dependent child who is subject to a quarantine order. The employee may be eligible for PFL benefits of up to $840.70 per week.

As noted in our prior post, an employee who returns from COVID-19 quarantine leave is entitled to be reinstated to the same position he or she held prior to taking such leave, with no change in pay or any other terms and conditions of employment. An employer cannot require an employee to use sick leave or paid time off accruals to receive pay for COVID-19 quarantine leave. Accordingly, an employee who takes quarantine leave will still be entitled to any other accrued paid time off, such as that required by the New York City Earned Sick and Safe Time Act or under an employer’s other paid time off policies.

An employee may not be subject to discrimination or retaliation for taking leave. In addition, an employee who is subject to a quarantine order but is able to work either remotely or otherwise (such as where an employee is asymptomatic or has not been diagnosed with a medical condition) is not eligible for COVID-19 quarantine leave.

Finally, an employee is not entitled to COVID-19 quarantine leave if an employer temporarily closes or goes out of business as a result of COVID-19 issues. In that case, the employee may apply for unemployment insurance benefits.

Employer Responsibilities

Employer responsibilities in implementing COVID-19 quarantine leave through PFL and DBL benefits (whether an employer is self-insured or providing benefits through an insurance carrier) remain largely the same as those imposed on employers prior to the new law. There are, however, new COVID-19 PFL/DBL leave packets and documentation requirements.

Employers should familiarize themselves with their role in the process when employees request PFL or DBL benefits, as a result of COVID-19 or otherwise, and particularly given the current COVID-19 related challenges and issues.

Once an employee notifies his or her employer of a need to take leave, the employee will need to complete the appropriate COVID-19 quarantine leave request package. Each request package has two forms, which have sections the employer and employee must each complete. The employee will complete a copy of his or her portion of each form, retain a copy, and submit a copy to the employer for completion of its sections, which includes providing certain wage information and confirming that the employee has used any available paid quarantine leave time and is unable to work remotely. The employer should keep a copy of the forms for its records and return the package to the employee within three business days; otherwise, the employee may proceed without the employer portion.

The employee is responsible for submitting the completed package to the employer’s PFL/DBL insurance carrier within 30 days of the employee’s first day of leave. The insurance carrier must approve or deny the requested benefits within 18 days of receiving the employee’s request. An employee who does not receive a timely response from the carrier or is denied benefits may file a request for arbitration so that a neutral arbitrator may review the claim.

Employers must continue to pay health insurance to employees on the same terms and conditions as the health insurance would be paid if the employees did not take COVID-19 quarantine leave.

An employee must submit a quarantine order from his or her local health department to support any request for PFL or DBL benefits. If an employee’s local health department is unable to immediately provide an employee with a quarantine order, the employee should submit to the employer’s insurance carrier with the leave package documentation from a licensed medical provider who treated the employee or dependent minor child, attesting that the employee (or child) qualifies for a quarantine order.

The supporting medical documentation must include the following:

• If an employee is subject to mandatory isolation, the treating medical provider must attest that: (1) the employee has tested positive for COVID-19; or (2) testing is not currently available for the employee, but the employee has COVID-19 symptoms and has had contact with a known COVID-19 case.
• If an employee is subject to a mandatory quarantine, the treating medical provider must attest that: (1) the employee has been in close contact with someone who has tested positive for COVID-19 or who is currently in mandatory isolation; or (2) the employee has COVID-19 symptoms and has returned within the past 14 days from a country designated with a level 2, 3, or 4 advisory for COVID-19.
• If an employee is subject to a precautionary quarantine, the treating medical provider must attest that: (1) the employee is asymptomatic and has returned within the past 14 days from a country designated with a level 2, 3, or 4 advisory for COVID-19; or (2) the employee has been determined to have had proximate exposure with someone who has tested positive for COVID-19 while that person was symptomatic.

After submitting the medical documentation, the employee is responsible for following up with his or her local health department to obtain the quarantine order; once the employee has received the quarantine order, he or she must submit it to the insurance carrier. Local health departments are required to provide the order within 30 days of the employee’s request.

If an employee seeks PFL to care for his or her minor dependent child under isolation or quarantine, the documentation from the healthcare provider must include the information set forth above as it relates to the child. Importantly, an employee who stays home to care for a child whose school has been closed due to “preventative social distancing” is not eligible for PFL. If, on the other hand, the child’s school has been closed due to a mandatory or precautionary order of quarantine or isolation, an employee may be eligible for PFL.

An employee may file a complaint with the New York State Department of Labor for any violation of the COVID-19 sick leave law.

Lastly, employers should note that the law may be applied retroactively, meaning that an employee may take COVID-19 sick leave even if the quarantine or isolation order was issued prior to March 18, 2020, when the law became effective.

As noted in our prior blog posts concerning New York’s COVID-19 sick leave law, the Families First Coronavirus Response Act, and The DOL Issues Updated Guidance on the FFCRA’s Paid Leave Provisions, employers in New York with fewer than 500 employees are also subject to the federal Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. New York employers must continue to be mindful of their obligations under New York and federal law and the interplay and differences between the state and federal laws.