On January 20th, 2021 the New York State Department of Labor issued guidance regarding NYS COVID-19 Paid Sick Leave. This new guidance significantly expands the obligations for employers. A few main points of the new legislation include:
- Employees may be able to take up to three instances of COVID-19 sick leave depending on certain circumstances.
- 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). If an employee tests positive for COVID-19 following a period of mandatory quarantine or isolation, the employee cannot work and is automatically deemed subject to a subsequent mandatory order or 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. The employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19.
- 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. It 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.
- Employers must continue to pay employees at their regular rate of pay if the employer mandates that an employee stay out of work due to exposure or potential exposure of COVID-19 (even if there is no government-issued order of quarantine in place). The employee must continue to receive 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, in accordance with the guidance, for the period of time the employee is subject to such mandatory or precautionary order of quarantine or isolation.
As a reminder from a previous employer alert, on March 18th, 2020 NYS passed legislation to create paid sick leave for employees who have been ordered to quarantine or isolate by a government entity.
The legislation covers all employers and the amount of leave an employee is entitled to depend on the employer’s size:
- Employers of 10 or fewer as of January 1, 2020 must provide unpaid, job protected sick time during an employee’s period of ordered quarantine or isolation, except those employers with net income of more than $1 million, which must provide five days of paid sick leave
- Employers of 11 to 99 must provide five days of paid sick leave
- Employers of 100 or more must provide up to fourteen days of paid sick leave
- Public employers must provide at least fourteen days of paid sick leave
This new guidance restricts the number of times an employee can use COVID-19 sick leave. An employee cannot qualify for this sick leave for more than three orders of quarantine or isolation and in order to be qualify for the second and third orders the employee must receive a positive COVID-19 test. As noted above, it is not recommended for an employee to receive another COVID-19 test before returning to work after a government quarantine.
It is unknown if this guidance will be legally challenged in the future but it is the current position of the New York State Department of Labor at this time.
Please contact our Director of Human Resources, Caroline Organ, cmo@bspcpa.com or 716-854-5034 with any questions.