January 28, 2021 January 20, 2021 New York State Department of Labor Guidance on Use of COVID-19 Sick Leave
KEEPING YOU INFORMED…
This memorandum analyzes the January 20, 2021 New York State Department of Labor (“the DOL”) Guidance on Use of COVID-19 Sick Leave (“the Guidance”) that we recently sent to you (and which is attached for your convenience).
New York State’s COVID-19 Leave Law continues to require employers to provide job- protected leave to employees who are subject to a COVID-19-related mandatory or precautionary order of quarantine or isolation issued by the State Department of Health (“the DOH”), a local board of health or another appropriate government entity, but only if they are unable to remotely work. Depending on the size of the employer’s workforce, the employer’s net income for the 2019 tax year and whether it is a public or private entity, the required leave is either: (1) all unpaid; (2) paid for at least five calendar days, followed by unpaid leave; or (3) paid for at least 14 calendar days.1
The Guidance expands these rights beyond what, in our opinion, the law requires. Therefore, we have serious questions about the enforceability of some aspects of it. Nevertheless, our analysis of what it requires follows.
Specifically, the Guidance confirms our advice that employees are eligible to use State COVID-19 leaves multiple times, but adds a cap on the number of leaves that can be taken to a total of three. It also gives employees the right to leave in two new situations:
- during a second or third instance in which an employee tests positive (this does not require a second or third quarantine/isolation order) after an initial DOH/government agency-ordered quarantine/isolation (via an order); and
- during any period when an employer mandates that an employee, who is not otherwise subject to a quarantine/isolation order, remain out of work due to exposure or potential exposure to COVID-19.
Finally, the Guidance reiterates that employees (except for nursing home staff) do not need to obtain a negative test result prior to returning to work.
Each of these topics will be addressed in more detail below.
1. Employees May Take Up to Three Leaves
One question that employers have had about the State COVID-19 Leave Law was whether employees may qualify for more than one leave. The Guidance confirms that employees may qualify for more than one leave, but limits each employee to a total of three leave periods.
2. The Guidance Gives Employees New Leave Rights if They Test Positive Following a Period of Quarantine
a. Employees Who Continue to Test Positive Before Returning to Work Are Deemed to Have Received a Second Order of Quarantine
Individuals who have contracted COVID-19 can sometimes test positive for up to three months. Nevertheless, the Guidance states that, if an employee continues to test positive for COVID-19 after the DOH (or other qualified government agency) order to quarantine/isolate expires, the employee is prohibited from reporting to work and is “deemed” to have received a second mandatory order of isolation from the DOH.
This is treated as a new leave, not an extension of the previous one. Thus, it separately counts toward the three-leave limit. This also means, though, that an employee who was entitled to pay during the first leave is also entitled to be paid again during the second leave (subject to providing medical documentation as discussed below). For example, if the employee was entitled to five days of paid leave during the first leave (e.g., an employee of a private employer with between 11 and 99 employees), the employee is entitled to another five days of paid leave during the second leave. Likewise, for large private and public employers, this means that an employee could be entitled to 42 or more consecutive days of paid leave (i.e., “at least 14 days” times three leaves).
To receive the second (or third) leave, the Guidance requires that 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 quarantine/isolation. The employee does not, however, need to submit documentation of a positive result if the employer gave the employee the test for COVID-19 that showed the positive result.
b. Employees Who Test Positive After Returning to Work Are Also “Deemed” to Have Received a Second Order of Quarantine
If the employee has returned to work and subsequently receives a positive test, the employee must cease reporting to work and is “deemed” to have received a second mandatory order of isolation from the DOH. This entitles the employee to a second leave as long as the employee submits documentation from a licensed medical provider or testing facility attesting that the employee has received a positive diagnostic test for COVID-19 (assuming that the test was not employer-provided, in which case the employer already has this information).
The Guidance does not provide any temporal proximity between the two tests, even though there could be weeks or months between them. Thus, it is conceivable that an employee who tested positive in March 2020 will test positive again in February 2021. In this case, read literally, the Guidance entitles the employee to a second leave even if the employee does not actually receive a second order of quarantine or isolation.
This is a new requirement. Months ago, the Center for Disease Control (CDC) updated its guidance to provide that individuals who contracted COVID-19 may continue to test positive for up to three months. As long as they are asymptomatic, the CDC guidance permits them to exit quarantine. DOH Guidance similarly has stated since March that an employee who tests positive for COVID-19 may return to work after 10 days. Notwithstanding this, the DOL Guidance requires employees who continue to test positive for COVID-19 to remain out of the workplace, even if they are not required to quarantine. Therefore, we recommend that employers contact us if they have an employee who continues to test positive following a period of quarantine/isolation.
3. Employees Are Not Required to Obtain a Negative COVID-19 Test in Order to Return to Work
The Guidance confirms that (except for nursing home staff),2 following a period of government-mandated quarantine or isolation, an employee is not required to receive a negative COVID-19 test in order to return to work. In fact, the Guidance states that it “is not recommended” for employees to be tested prior to discontinuing isolation or quarantine. This is consistent with prior guidance provided by the DOH regarding public and private employees returning to work following COVID-19 infection or exposure.
4. Employees Are Entitled to Pay When the Employer Mandates That They Remain Out of Work
The Guidance requires that an employer pay an employee, at the employee’s regular rate, for any time period that the employer “mandates” that an employee, who is not otherwise subject to a quarantine/isolation order, remain out of work “due to an exposure or potential exposure to COVID- 19.” The exposure or potential exposure need not have occurred at work.
The employee is entitled to be paid until either: (1) the “employer permits the employee to return to work;” or (2) the employee becomes subject to a quarantine/isolation order, at which time the employee must “receive sick leave as required by” the State COVID-19 leave law.
a. This Is a New, Additional Benefit Not Set Forth in Statute
The Guidance suggests, but does not clearly state, that this paid time is in addition to whatever pay and leave benefits the employee would be entitled to pursuant to the State COVID-19 Leave Law if the employee does, in fact, eventually receive a quarantine/isolation order.
Therefore, a small private employer, which ordinarily would not be required to provide any pay to an employee during the quarantine/isolation period, would still have to pay an employee for any days that the employer mandated that the employee remain out of work due to exposure or potential exposure to COVID-19. Likewise, larger private employers and public employers would have to pay the employee for this time, even if the employee is not covered by a subsequent quarantine/isolation order.
b. The Guidance is Ambiguous on Several Key Points
The first of several ambiguities relates to what it means for an employer to exclude an employee from the workplace due to an “exposure or potential exposure.”
When an employee has been within six feet of a COVID-19-positive individual for 10 minutes or more over a 24-hour period, the employee fits the current criteria for being exposed or potentially exposed. The Guidance, however, does not define “potential exposure.” Thus, it is unclear whether the DOL would consider someone who, for example, indicates on a COVID-19 screening questionnaire that he/she has COVID-19 symptoms as exposed or potentially exposed. It would seem to be an overreach for the DOL to claim that everyone displaying COVID-19-related symptoms has potentially been exposed, thereby obligating employers to provide paid leave. Employers who have concerns about providing leave in this situation should call us to further discuss the matter.
The second ambiguity is that the Guidance does not explicitly prohibit charging an employee’s accruals for the time that an employer mandates the employee to remain out of work. Employers who are considering charging employees’ accruals should call us to discuss the potential issues involved in doing so.
Finally, the Guidance is ambiguous with regard to what constitutes an employer “mandate” that an employee remain out of work, as opposed to an employer communicating and enforcing DOH guidance requiring that an employee remain out of the workplace. Arguably, where the employer is complying with DOH guidance, it is the DOH, not the employer, which is excluding the employee from the workplace. If so, then the new benefit provided by the Guidance would not apply. Again, employers who are considering taking us this position should first call us for further assistance.
Conspicuously absent from the Guidance is any discussion of what happens if an employer excludes an employee from the workplace because the employee traveled to another state for 24 or more hours for non-employment-related reasons (other than to Pennsylvania, New Jersey, Connecticut, Massachusetts or Vermont), or to a country for which the CDC has issued a level two or higher health notice.
Prior DOH guidance made clear that these employees are ineligible for State COVID-19 Leave Law benefits. Since the new DOL Guidance states that it “supplements” prior guidance, and providing benefits to those who travel is inconsistent with the approach the State has taken since the beginning of the pandemic, it is unlikely that the DOL intended to extend State COVID-19 Leave to employees who otherwise would not be eligible due to their travel.
d. Next Steps for Implementing This New Requirement
We will keep you apprised if the DOL clarifies these issues. In the meantime, some employers may wish to take an expansive interpretation of the Guidance to avoid litigation or because they believe doing so is appropriate to protect public health. Other employers may wish to take a narrower interpretation given the potential expense, and/or the possibility that these new “rights” will be abused by certain employees. Public employers may also wish to take a narrower interpretation because they have concerns over the proper use of public money.
Employers looking to limit the benefits they provide pursuant to this Guidance should first call us to discuss the “pros and cons” of doing so and steps that an employer can take to mitigate their potential risk. Employers concerned that an employee may falsely report exposure in order to obtain paid leave should also reach out to discuss strategies that can be used to address this concern.
If you have any questions regarding the Guidance please contact one of our labor and employment attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2021
1 Public sector employers must provide at least 14 days of paid leave. Private sector employers should consult the chart on page “3” of our March 25, 2020 memorandum to determine what portion of the leave, if any, is paid. In general: (1) if the employer had 10 or fewer employees on January 1, 2020 and less than $1 million in net income in the previous tax year, it must only provide unpaid leave; (2) if the employer had 10 or fewer employees on January 1, 2020 and more than $1 million in net income in the previous tax year, it must provide five days of paid leave followed by unpaid leave; (3) if the employer had 11-99 employees on January 1, 2020, it must provide five days of paid leave followed by unpaid leave; and (4) if the employer had 100 or more employees on January 1, 2020, it must provide 14 days of paid leave.
2 The Guidance does not seem to exclude health care workers, notwithstanding that this category of employees has previously been excluded from DOH guidance along with nursing home staff.