New Guidance From NYS Department of Labor on COVID-Related Paid Sick Leave
State Labor Commissioner Roberta Reardon has issued new guidance regarding New York’s COVID-19 paid sick leave law that requires all employers to provide to all employees with COVID paid sick leave for up to three instances of quarantine.
Here’s how it works:
▪ An employee is quarantined by a public health official. They are entitled to sick leave as required under NYS COVID-19 sick leave law.
▪ 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 diagnostic test result for COVID-19 must not report to work. The employee shall be deemed to be subject to a 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, whether or not the employee already has received sick leave as required by the law for the first period of quarantine or 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. The employee shall be deemed to be subject to another 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 subsequent period of 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.
Further, if an employer mandates that 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, 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 such time as 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.
This guidance goes beyond the requirements previously set forth in Department of Health guidance issued in June 2020.
Key Takeaways:
▪ It is not necessary to require a negative COVID test to allow employees to return to work.
▪ Any employee who tests positive after a period of quarantine or isolation must not report to work. There is some anecdotal evidence that employees who test positive continue to test positive for a period of time after the end of their quarantine.
▪ Employers who keep employees away from the workplace pending a negative test may now be obligated to pay them for that time before the employee uses their own employer provided leave time.