In early 2020, as the COVID-19 pandemic began rapidly spreading across the country, numerous state, federal and local laws were enacted to provide sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation. These laws require, among other things, that employers provide affected employees with paid and/or unpaid sick leave, expanded family and medical leave, and various other benefits.

Recently, the New York State Department of Labor (NYSDOL) issued new guidance regarding the application of COVID-19 Paid Sick Leave Law (hereinafter the “COVID Law”) enacted by the state in March 2020. In particular, the guidance addresses employee entitlement to additional leave in the event of subsequent exposures requiring quarantine or isolation. The following is a summary of the COVID Law, and of the recently issued guidance.

Overview of the COVID Law

New York’s COVID Law applies to employees subject to a “mandatory or precautionary order of quarantine or isolation,” which is defined as an order relating to COVID-19 issued by New York State, the New York State Department of Health, by a local health board, or by any governmental entity authorized to issue such an order. The employer’s size and/or net income dictates how many calendar days of leave the affected employee is entitled to:

Leave provided under the COVID Law is job-protected and may not be counted against any other accrued leave the employee may be entitled to. Upon returning from leave, the employee must be restored to the position he/she held prior to having taken leave, with the same pay and terms of employment. Retaliation and/or discrimination against an employee for having taken leave is strictly prohibited.

It should be noted that there are exceptions to the COVID Law. Specifically, if the employee is asymptomatic and able to work remotely, the employer is not required to give leave. Similarly, leave need not be given if an employee (a) travels to a foreign country subject to a level two or level three travel warning issued by the Centers for Disease Control, (b) the travel was not employment-related, and (c) the employee was notified of the travel warning and the potential loss of their leave entitlement prior to traveling.

Updates to the COVID Law

Key points of the guidance recently issued by the NYSDOL on the application of COVID-19 sick leave are as follows:

  • An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work. However, if the employee thereafter tests positive a second (or third) time, the employee is entitled to further leave under the COVID Law, provided the employee submits documentation confirming the employee has tested positive.
  • If an employer requires that an employee who is not subject to a governmental entity’s mandatory order of quarantine or isolation remain out of work because the employee was exposed or potentially exposed to COVID-19 either at work, or outside of work, the employer must pay the employee at his/her regular rate of pay until the employer allows the employee to return. If before the employee returns to work a governmental entity issues the employee a mandatory order of quarantine or isolation, the COVID-19 law kicks in and the employee is then entitled to leave pursuant to that law.
  • Employees are entitled to leave under the COVID Law a maximum of three times, with the second and third times requiring a positive COVID-19 test.

Conclusion

As was mentioned above, New York’s COVID Law is one of several such laws. Various other states have similar laws, and there are likewise federal laws and local governmental laws that may apply to your business and its employees. These laws tend to be somewhat confusing, oftentimes overlap, and are constantly being refined and updated. Together with the fact that their application to a given employee’s situation is typically highly fact-specific, employers should consult with legal counsel for assistance in evaluating an affected employee’s leave entitlement, and before taking any adverse employment action against an employee who has taken and/or returned from leave due to COVID-19.

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Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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