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January 22, 2021

NYS Department of Labor Releases New Guidance Significantly Expanding COVID-19 Sick Leave Benefits

The NYS Department of Labor (DOL) recently issued “Guidance on Use of COVID-19 Sick Leave,” which significantly expands the obligations of employers with respect to New York State’s COVID-19 sick leave law. The guidance indicates, among other things, that (1) employees are permitted to take up to three instances of COVID-19 sick leave in certain circumstances and (2) if an employer mandates that an employee remain out of work due to exposure or potential exposure to COVID-19, the employer must continue to pay the employee, even in the absence of a government-issued order of quarantine or isolation.

By way of a brief refresher, as reported in a prior legal alert, on March 18, 2020, New York State passed legislation to create sick leave benefits for employees subject to a government-issued mandatory or precautionary order of quarantine or isolation due to COVID-19. Depending on the size of the employer (measured as of January 1, 2020), employees subject to an order of quarantine or isolation are entitled to the following benefits:

  • For employers with 10 or fewer employees and a net income of less than $1 million, employees are entitled to unpaid leave until the termination of any mandatory or precautionary order of quarantine or isolation and immediate access to Paid Family Leave and disability benefits (short-term disability) through the duration of quarantine or isolation.
  • For employers with 11 to 99 employees and employers with 10 or fewer employees and a net income of at least $1 million, employees are entitled to five days of paid leave with unpaid leave after that through the duration of the quarantine or isolation order and immediate access to Paid Family Leave and disability benefits (short-term disability) through the duration of quarantine or isolation.
  • For employers with 100 or more employees and public employers (regardless of number of employees), employees are entitled to 14 days of paid leave with unpaid leave through the duration of the quarantine or isolation order.

In contrast to the recently expired federal Families First Coronavirus Response Act, New York State’s COVID-19 sick leave law is an unfunded mandate that does not provide employers with any form of reimbursement for paid leave provided to employees. 

While the DOL and the Department of Health (DOH) jointly issued guidance on June 25, 2020, regarding the use of COVID-19 sick leave for health care employees, indicating that health care employees who return to work following a mandatory quarantine and subsequently receive a positive COVID-19 test result are deemed to be subject to a mandatory order of isolation from the DOH and are entitled to up to three instances of COVID-19 sick leave, the DOL’s January 20, 2021, guidance substantially broadens the obligations under New York’s COVID-19 sick leave law to cover all employees in all industries.

The guidance mirrors much of the prior guidance that was previously limited to health care employees. Specifically, an employee returning from a previous quarantine order who subsequently tests positive is deemed to be subject to an additional mandatory order of isolation. As a result, the employee is entitled to further paid leave for the subsequent order of isolation. The employee must provide documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19. The guidance also states that all employees are entitled to up to three instances of COVID-19 sick leave, with the caveat that the second and third instances must be based on a positive test result.

The new guidance further indicates that, if an employee is instructed by their employer to remain out of work due to potential exposure to COVID-19, “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 …for the period of time the employee is subject to such mandatory or precautionary order of quarantine or isolation.” This means that, in addition to the COVID-19 sick leave benefits triggered by a government-issued order, employers are now required to pay an employee who is out of work prior to the issuance of any such order. It should be noted that, according to the guidance, employees are entitled to these benefits regardless of whether the COVID-19 exposure occurred at the workplace.

The guidance is a significant expansion of NYS COVID-19 sick leave benefits provided by the statute. The legislation mandating COVID-19 sick leave benefits does not provide that employees are entitled to more than one instance of paid leave. Further, the operative language of the underlying legislation requires that the employee must be subject to an order of quarantine or isolation in order to qualify for sick leave benefits, and the statute does not provide benefits for the time during which an employee cannot report to work due to potential exposure and is not yet subject to an order of quarantine. 

Like prior challenges by restaurants and health clubs to New York State’s Orange Zone restrictions, the guidance seems ripe for a legal challenge because, on its face, the guidance imposes requirements on employers to provide COVID-19 paid sick leave beyond that which is required under the statutory mandate. As a result, the guidance will likely be subject to legal challenge on the basis that the DOL lacks the authority to impose these requirements on employers. We will provide additional updates as they become available.

If you have any questions regarding the content of this alert, please contact Ben Wilkinson, counsel, at bwilkinson@barclaydamon.com, or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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