NYS COVID-19 Leave - Expanded Benefits
On January 20, 2021, the New York State Department of Labor issued clarifying guidance concerning the paid sick leave benefits available for employees who are under a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“Paid Quarantine Leave”), which first took effect on March 18, 2020. Critically, the guidance makes clear that employees may be eligible for up to three Paid Quarantine Leaves and that employers must pay employees when the employer directs the employee to stay out of work for COVID-19 exposure or potential exposure. These paid leave benefits are paid by the employer and cannot be recovered through tax credits.
The guidance does not require that the benefits described above be applied retroactively.
Additional Periods of Paid Quarantine Leave
- Existing Benefit: Employees may receive Paid Quarantine Leave once for a mandatory or precautionary order of quarantine or isolation for COVID-19 based on any circumstances that may warrant such an order. This first period of Paid Quarantine Leave may have run concurrently with paid federal leave under the Families First Coronavirus Response Act (“FFCRA”), under which payments can be recovered through tax credits. Please note that absent further potential federal action, since January 1, 2021, employers are no longer legally required to provide leave under the FFCRA, but may choose to voluntarily offer FFCRA leave benefits to employees who have not already exhausted their FFCRA leave entitlements and continue to take tax credits on paid leave under the FFCRA through March 31, 2021.
- Use of FFCRA leave benefits prior to December 31, 2020 does not impact employees’ eligibility for Paid Quarantine Leave benefits in 2021.
- 2 Additional Periods of Paid Quarantine Leave: The new guidance allows for 2 additional periods of Paid Quarantine Leave – but only in the event the employee personally tests positive for COVID-19. An employee may receive Paid Quarantine Leave for no more than 3 orders of quarantine or isolation.
- Second Period of Paid Quarantine Leave: If the employee tests positive for COVID-19, they are automatically deemed subject to a mandatory order of isolation from the NYS Department of Health and are entitled to the full Paid Quarantine Leave benefit, whether or not the employee already received Paid Quarantine Leave for the first period of quarantine or isolation.
- Third Period of Paid Quarantine Leave: If the employee continues to test positive after the end of the second quarantine or isolation period, they are again automatically deemed subject to a mandatory order of isolation from the NYS Department of Health and are entitled to additional Paid Quarantine Leave.
- Required Documentation of Positive COVID-19 Test: The employee must submit documentation from a licensed medical provider or testing facility confirming the employee’s positive COVID-19 test to qualify for Paid Quarantine Leave for the second and third periods of quarantine or isolation. The employee does not need to submit documentation of a positive COVID-19 test result if the result was from an employer administered COVID-19 test.
The New York State Department of Labor does not recommend that employees produce a negative test to discontinue their quarantine or isolation period. The New York City Health Department, in earlier guidance, advised that employees who have tested positive for COVID-19 and who have completed quarantine should not be required to show a negative COVID-19 test in order to return to work.
Employer-Mandated Quarantine/Isolation
An employer who requires an employee (who is not otherwise subject to a mandatory or precautionary order of quarantine or isolation) to remain out of work due to exposure or potential exposure to COVID-19 must pay the employee their regular rate of pay until the employer permits the employee to return to work, regardless of whether such exposure or potential exposure was in the workplace, or until the employee becomes subject to a mandatory or precautionary order of quarantine or isolation (at which time the employee must receive Paid Quarantine Leave). This paid leave benefit is in addition to FFCRA leave and Paid Quarantine Leave. It is unclear whether an employer may use an employee’s available paid time off for this purpose; however, if an employee does not have available paid time off, the employer must pay for the time out of work.
Please feel to contact your CB&D attorney with any questions, including about further return to work questions.
