Guidance from the NY DOL on COVID-19 Sick Leave Places New Obligations on Employers

The New York State Department of Labor (the NYDOL) recently released new guidance (the Guidance) on the use of leave and benefits authorized by New York’s COVID-19 Sick Leave Law (the Law). The Law, enacted by Governor Cuomo on March 18, 2020, provides benefits for employees subject to a government-issued order of quarantine or isolation due to COVID-19, including up to 14 days of paid sick leave (depending on the size of the employer), guaranteed job protection, and access to temporary disability and paid family leave benefits.  

The Guidance (which is generally in line with guidance previously issued to healthcare employers) addresses issues relating to employees who receive multiple positive COVID-19 test results and whether employees are entitled to multiple periods of COVID-19 Sick Leave.  According to the Guidance:

  • 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).
  • However, an employee who subsequently receives a positive COVID-19 test (after the end of a mandated quarantine or isolation period) must not report to work, is deemed to be subject to another mandatory order of isolation from the Department of Health, and is entitled to COVID-19 Sick Leave under the Law, regardless of whether the employee has already received COVID-19 Sick Leave for the first (or second) period of quarantine or isolation.
  • The employee must submit documentation of a positive COVID-19 test from a licensed medical provider or testing facility (unless the test was given by the employer) to receive subsequent rounds of COVID-19 Sick Leave.
  • An employee can qualify for COVID-19 Sick Leave for up to three (3) orders of quarantine or isolation if based on positive COVID-19 tests.

Most surprisingly, the Guidance also provides that if an employer mandates an employee who is not subject to a government-issued quarantine or isolation order to 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 is required to pay the employee at his/her regular rate of pay until the employer permits the employee to return to work or the employee becomes subject to a government-issued order of quarantine or isolation, at which time the employee will receive COVID-19 Sick Leave as required by the Law.

What does this mean for New York employers? 

Through the Guidance, the NYDOL officially takes the position that—despite the lack of supporting language in the Law—employees are eligible for up to three periods of COVID-19 Sick Leave.  Additionally, employers who keep employees out of work due to potential exposure (who are not subject to a mandatory quarantine or isolation order) are now advised by the NYDOL that they are obligated to pay such employee’s wages during this employer-imposed leave (until they are permitted to return to work or become subject to a mandatory quarantine or isolation order).  This obligation is not supported by the underlying Law and the enforceability of the obligations imposed by the NYDOL’s Guidance is ripe for challenge.  The Guidance also leaves open questions about whether such continuing wage payment obligation could be satisfied by utilizing an employee’s PTO or temporary disability/paid family leave benefits.  We will continue monitoring for updates on these unanswered questions.

In the meantime, employers should continue to consult with counsel about COVID-19-related leave and benefit issues, including an employer’s obligation to provide multiple rounds of COVID-19 Sick Leave and/or continuing wage payment obligations for employer-imposed leave relating to COVID-19.

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