As a review, NYS law requires employers to provide up to 14 days of paid sick leave (depending on employer size, net income, and whether it is a private or public employer) for employees subject to a mandatory or precautionary order of quarantine or isolation (a “COVID-19 Order”) issued by an authorized governmental entity. [Didn’t that expire at the end of 2020.] Unlike the federal Families First Coronavirus Response Act (“FFCRA”) paid leave mandate which expired on December 31, 2020 (extended as a voluntary program), the NYS COVID-19 quarantine paid leave mandate is ongoing.
Some of the more vexing questions have related to whether employees subject to COVID-19 Orders on multiple occasions are eligible for multiple periods of COVID-19 quarantine paid leave. For example, Stefon was subject to a 14-day COVID-19 Order in June 2020 because a household member was diagnosed with COVID-19. Stefon works for a large employer of more than 500 employees, so FFCRA paid leave was not available. Stefon’s employer was required to provide paid leave under the NYS COVID-19 quarantine paid leave law. On January 5, 2021, after testing positive for COVID-19, Stefon was placed under a 14-day COVID-19 Order.
Unsure whether NYS COVID-19 quarantine paid leave was a “once and done” program, the employer contacted the NYS COVID-19 employer hotline – five (5) times. Not surprisingly, none of the hotline representatives had an answer. When I reached out to a longtime state DOL contact, they replied with an “off the record educated guess.”
On January 20, 2021, the NYS DOL issued guidance on this topic. [Wait, what? I check the state’s COVID-19 employer guidance page for updates several times a week. I haven’t seen anything about this!] If you weren’t aware, you’re not alone. This important employer compliance update isn’t on the state’s employer guidance page. Ok, that’s not 100 percent true. There is a link labeled “New Paid Leave for COVID-19” in small type at the top of the page name block. That link leads to another page labeled New Paid Leave for COVID-19. [Seriously? This page has been labeled “New” for 10 months!] Scrolling down to the bottom of the “Paid Sick Leave” section, you’ll find another link labeled, “View updated guidance on the use of COVID-19 Sick Leave (1/20/21).” [Oh sure, that all makes perfect sense. NOT!]
Without going into great detail, here are the high points from this guidance:
Q: Are employees who return to work following a COVID-19 Order eligible for additional periods of mandatory NYS COVID-19 quarantine paid leave in the future?
A: Yes. After completing a mandatory order of quarantine or isolation, employees who test positive for COVID-19 in the future are “deemed” to be subject to a second mandatory order of quarantine and are again eligible for COVID-19 quarantine paid leave.
Q: Are employees who continue to test positive for COVID-19 at the end of a COVID-19 Order period eligible for additional periods of mandatory NYS COVID-19 quarantine paid leave?
A: Employees who continue to test positive for COVID-19 at the end of a mandatory order of quarantine or isolation are “deemed” to be subject to a second mandatory order of quarantine and are immediately eligible for another period of COVID-19 quarantine paid leave.
Q: Are employees not subject to COVID-19 Orders but required to remain out of work by their employer due to a confirmed or potential exposure to COVID-19, eligible for COVID-19 quarantine paid leave?
A: Yes, but with a twist. [That’s never a good thing.] Employees not subject to mandatory orders of quarantine or isolation but told by their employer to remain out of work due to a potential or confirmed exposure to COVID-19 must continue to be paid their regular wages until either:
- the employer allows the employee to return to work; or
- the employee is subject to a COVID-19 Order, at which time the employee will receive COVID-19 quarantine paid leave for the duration of the Order.
Q: Is there a limit on the number of times an employer must provide employees with COVID-19 quarantine paid leave?
A: Yes. Employees are limited to a total of three (3) periods of COVID-19 quarantine paid leave. However, to be eligible for the second and third periods of paid leave, employees must first test positive for COVID- 19.
Before I continue, it’s important to stress that employers should follow DOL guidance and consult qualified legal counsel with any concerns or questions. [Yeah, we know, CYA.] That said, I’m at a loss to identify language in the statute to support the broad and generous interpretations enumerated in this guidance. [It’s probably best to resist commenting further.]
After more than 10 months of COVID-related compliance issues, I can confidently say the only constant is change. Stay tuned!
Posted by Frank Cania, president of HR Compliance Experts LLC.
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Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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