One of my favorite childhood memories is of watching the slapstick comedy team forever known as Abbott and Costello (I knew you were old, but wow!). While definitely from a different era and not politically correct by today’s standards, Abbott and Costello were comedy geniuses. But, of all their work, “Who’s on First” is likely their best-known skit. It also perfectly represents what happens when I try to explain most state and federal COVID-19 regulations and guidance.
In case you haven’t heard, the New York State Department of Health (“NYDOH”) updated its December 24, 2021, Advisory on Shortening Isolation Period for Certain Fully Vaccinated Healthcare Workers and Other Critical Workforce guidance document. This guidance, Interim Updated Isolation and Quarantine Guidance, is intended to clarify several points (how can you write the words “clarify” and government “guidance” without falling off your chair laughing?) and adopts recommendations from the federal Centers for Disease Control and Prevention (“CDC”) issued in a press release titled, CDC Updates and Shortens Recommended Isolation and Quarantine Period for General Population. (OK, enough with the links to government documents that nobody understands…including the government!)
Without creating an Ishikawa diagram (a what?! Never mind, I’m sure I wouldn’t understand it.), the following bullet points should help explain the most recent guidance:
- NYS is now aligned with the updated CDC recommendations, which allow for shortened isolation and quarantine requirements for the general population.
The NYS Interim Guidance makes the following recommendations regarding isolation:
- An individual exhibiting symptoms of COVID-19 must isolate for five days – where day zero is the day symptoms first began.
- An asymptomatic individual who tests positive for COVID-19 must also isolate for five days – where day zero is the day the individual took the first COVID-19 test with a positive result.
- Isolation will end following the five-day isolation period if the individual is asymptomatic or if symptoms are resolving. The individual must then wear a well-fitting mask (KN95 is recommended) while in the presence of others for an additional five days.
- Individuals who are unable to wear a well-fitting mask (KN95 is recommended) following the five-day isolation period must follow standard (i.e., not shortened) Isolation Guidance.
- Individuals who are moderately to severely immunocompromised should also continue to follow standard (i.e., not shortened) Isolation Guidance.
The NYS Interim Guidance provides further recommendations regarding quarantine for individuals who were exposed to COVID-19, where day zero is the last date of exposure:
- An individual NOT fully vaccinated must quarantine for five days; then, they must wear a well-fitting mask (KN95 is recommended) while in the presence of others for an additional five days.
- Likewise, a fully vaccinated individual eligible for, but who has not yet received a booster (or received a booster less than two weeks before the first date of exposure), must quarantine for five days; then, must wear a well-fitting mask (KN95 is recommended) while in the presence of others for an additional five days.
- A fully vaccinated individual who received a booster at least two weeks before the first date of exposure is not required to quarantine. However, the individual must wear a well-fitting mask (KN95 is recommended) while in the presence of others for 10 days after the last date of exposure.
- A fully vaccinated individual not yet eligible for a booster is not required to quarantine. However, the individual must wear a well-fitting mask (KN95 is recommended) while in the presence of others for 10 days after the last date of exposure.
- If possible, the individual should test for COVID-19 with either a Nucleic Acid Amplification Test (i.e., PCR) or Antigen Test on day five of the isolation period.
- If symptoms appear, the individual must quarantine and should test for COVID-19. In this situation, the quarantine will end when the test is negative. If the individual does not test for COVID-19, they must isolate according to the guidance above.
Wait, There is More!
While I have your attention, I’d like to share some of the FAQs we’ve received from our clients through our HR Answerline.
Q: Please clarify COVID-specific sick pay requirements for employers and who is eligible.
A: NYS requires employers to provide employees with job-protected COVID-specific sick pay based on the following:
- Small businesses with 10 or fewer employees and a net annual income less than $1 million in the previous year:
- Must provide employees with unpaid leave for the duration of their quarantine or isolation period.
- Employees on unpaid leave may receive COVID-specific benefits through the employer’s Paid Family Leave and disability benefits policy for the duration of the order of quarantine or isolation.
- Small businesses with 10 or fewer employees and a net annual income of $1 million or more in the previous year, and:
- Medium-sized businesses with 11-99 employees:
- Must provide employees with at least five days of COVID-specific paid sick leave.
- Employees may receive COVID-specific benefits through the employer’s Paid Family Leave and disability benefits policy following the five days of COVID-specific sick leave.
- Large businesses with 100 or more employees:
- Must provide employees with at least 14 days of COVID-specific paid sick leave.
- Employees may receive COVID-specific benefits through the employer’s Paid Family Leave and disability benefits policy following the 14 days of COVID-specific sick 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. 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 remainder 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 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.
Q: Is NYS COVID-specific paid leave the same as the annual NYS Paid Sick and Safe Leave employers are required to provide employees?
A: NO. NYS Paid COVID-specific leave is separate from the mandated annual Paid Sick and Safe Leave (“PSSL”) benefit employers must provide employees. Further, employers are prohibited from requiring employees to use any available PSSL or deducting from an employee’s available PSSL for COVID-related absences.
Q: How do we pay commissioned employees?
A: COVID-specific sick pay for employees usually paid on a commission basis is the same as any other paid leave benefits they would otherwise receive. For example, if a commissioned salesperson is paid $150 per day when on vacation or other paid leave, they would likewise receive $150 per day for COVID-specific paid leave. Note, the employee cannot be paid less than minimum wage. For example, if an employee generally works eight hours per day, they must receive at least $105.60 (8 x $13.20 per hour) in most areas of NYS. Certain fast-food employees and employees in NYC and Nassau, Suffolk, and Westchester Counties must be paid at least $120.00 (8 x $15.00 per hour).
Q: Is an employee eligible for COVID-specific pay if their child has tested positive?
A: COVID-specific sick pay is not required unless the employee has a covered COVID event. However, if the employee’s minor dependent child is under a mandatory or precautionary order of quarantine or isolation, the employee may be eligible to take Paid Family Leave (“PFL”) to care for them. This benefit is not available if the employee is able to work through remote access or other means. In 2022, the PFL wage benefit for COVID-19 quarantine leave is 67% of the employee’s average weekly wage (AWW), up to a maximum weekly benefit of $840.70. The AWW is the average of the employee’s pay for eight weeks in which they worked and received wages prior to starting PFL.
That’s all for now (why such a short post…NOT!). But, stay tuned for updates on the federal “Vaccine or Test” mandate, and any other issues that are sure to cause additional confusion for us all!
Posted by Frank Cania, president of HR Compliance Experts LLC.
© 2022 HR Compliance Experts LLC
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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