On January 20, 2021, the New York State Department of Labor (“DOL”) published new guidance on the application of COVID-19 sick leave. All prior guidance remains in effect. The full document can be found here: guidanceonuseofcovid-19sickleave_0.pdf (ny.gov)
Summary of the New Guidance:
1. Return to Work Following the First Positive COVID-19 Test
An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff. An employee who subsequently receives a positive diagnostic test result for COVID- 19 must not report to work. The employee shall be “deemed” (i.e., considered) to be subject to a mandatory order of isolation from the Department of Health.
The employee shall be entitled to sick leave as required by New York’s COVID-19 sick leave law, whether or not the employee already received sick leave as required by the law for the first period of quarantine or isolation.
The employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19.
The employee does not need to submit documentation of a positive result if the employee’s employer gave the employee the test for COVID-19 that showed the positive result.
2. An Employee Under a Second Mandatory Order of Isolation
An employee who is subject to an order of quarantine or isolation but continues to test positive for COVID-19 after the end of such quarantine or isolation period must not report to work.
An employee is not recommended to be tested to discontinue isolation or quarantine.
The employee shall be deemed to be subject to a second mandatory order of isolation from the Department of Health and shall be entitled to sick leave as required by New York’s COVID-19 sick leave law for the second period of isolation.
The employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has received a positive diagnostic test for COVID-19 after completing the initial period of isolation.
The employee does not need to submit documentation of a positive result if the employee’s employer gave the employee the test for COVID-19 that showed the positive result.
3. If an Employer Mandates the Test, Then the Employee Must be Paid the Regular Rate of Pay
If an employer mandates that an employee (who is not otherwise subject to a mandatory or precautionary order of quarantine or isolation) remain out of work due to exposure or potential exposure to COVID-19, regardless of whether such exposure or potential exposure was in the workplace, the employer shall continue to pay the employee at the employee’s regular rate of pay until:
the employer permits the employee to return to work; or
the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which time the employee shall receive sick leave as required by New York’s COVID-19 sick leave law, for the period of time the employee is subject to such mandatory or precautionary order of quarantine or isolation.
4. New York COVID-19 Sick Leave is Capped at Three Orders of Quarantine or Isolation
In no event shall an employee qualify for sick leave under New York’s COVID-19 sick leave law for more than three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test in accordance with paragraphs 1 and 2.
As a reminder, employers should note that the paid COVID-19 leave cannot be charged to the employee’s paid sick leave or other accrued unused paid time off.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC