The NY DOL Issues Guidance on COVID-19 Sick Leave

On January 20, 2021, the Commissioner of the New York State Department of Labor (DOL) issued new guidance on New York’s COVID-19 Sick Leave Law (“Sick Leave Law”), which was enacted on March 18, 2020. (A copy of the guidance can be found here.) As discussed in our previous blog post, the Sick Leave Law requires New York employers to provide varying levels of paid and unpaid sick leave (depending on employer size and net income) and access to expanded paid family leave and temporary disability benefits to employees subject to an order of quarantine or isolation due to COVID-19. All employees, regardless of the size of their employers, are entitled to job protection upon their returns from leave. The Guidance (which supplements the DOL’s earlier guidance on the use of leave) is summarized below:

• An employee who returns to work following a period of mandatory quarantine or isolation need not be tested before returning to work, with a limited exception for nursing home staff. If, however, an employee subsequently tests positive for COVID-19, the employee must cease reporting to work and is entitled to leave under the COVID-19 Sick Leave Law (“COVID-19 Sick Leave”) even if the employee already received sick leave for the first period of quarantine or isolation. Similarly, an employee who is subject to an order of quarantine or isolation but continues to test positive when that period of quarantine or isolation ends must not return to work and is entitled to COVID-19 Sick Leave for the second period of isolation.
• An employee cannot qualify for COVID-19 Sick Leave for more than three orders of quarantine or isolation, and the Guidance makes clear that the second and third orders of quarantine or isolation must be based on a positive COVID-19 test. In either of the above-described circumstances, an employee who receives a positive test result after a first period of quarantine must submit documentation from a licensed medical provider or testing facility attesting that the employee has received a positive diagnostic test result. This requirement is waived if an employer-provided COVID-19 test showed a positive result for the employee.
• An employer that requires an employee who is not otherwise subject to a mandatory or precautionary order of quarantine or isolation to remain out of work in the event of exposure or potential exposure to COVID-19, regardless of whether such exposure was in the workplace or elsewhere, must continue to pay the employee at his or her regular rate of pay until the employer permits the employee to return to work or the employee otherwise qualifies for COVID-19 Sick Leave.

New York employers should carefully evaluate their policies and practices to ensure compliance with the Sick Leave Law and the recently enacted guidance. If you have any questions regarding this blog, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.