The New York State Commissioner of Health, Dr. Mary Bassett, once again extended the designation of COVID-19 as highly contagious, which requires employers’ HERO Act Disease Exposure Prevention Plans to remain activated through at least March 17, 2022.
The Commissioner’s fifth consecutive extension of the COVID designation comes when the number of new COVID cases in NYS has dropped precipitously over the past several weeks. From a seven-day average high of just over 74,000 in early January to 4,744 on February 14. However, even with the significant drop in cases, the Commissioner’s continued designation of COVID-19 as highly contagious and a serious risk to public health was not unexpected. That’s because the decision is based, at least in large part, on the CDC continuing to identify the level of COVID transmission in all but one NY county as “high.”
Exposure Prevention Plans Remain in Effect, But Unmasked!
Employers in NYS must continue enforcing their company’s Disease Exposure Prevention Plan under the HERO Act. This plan includes conducting daily health screenings for employees entering the workplace, among other requirements. However, EFFECTIVE FEBRUARY 10, 2022, employers’ plans are not required to include a mandate that all employees wear face coverings or masks. As explained in a recent Frankly Speaking, the NYS Department of Labor (“DOL”) updated its HERO Act model plan language to reflect the elimination of the state’s broader mask mandate applicable to all indoor public spaces.
Updates to NYS COVID-Specific Paid Sick Leave
Sometimes, change leads right back to where you started, just more confused. This is certainly true of the NYS COVID-specific paid sick leave requirements.
It’s not news to anyone that employers are required to provide COVID-specific paid sick leave benefits to employees under an order of quarantine or isolation. The number of paid leave days is generally based on headcount, with up to five days for smaller employers and up to 14 days for employers with 100 or more employees. What shouldn’t be, but often is, news to employers is that they are required to provide COVID-specific paid sick leave benefits to employees up to THREE TIMES. Well, at least that was the rule until February 2, 2022, when the DOL eliminated its previously issued guidance on the subject. With that change, there was no limit to the number of times an employer would be required to provide COVID-specific paid sick leave benefits to employees.
Fortunately, the DOL has updated its FAQs to state once again that employees are eligible for COVID-specific paid sick leave benefits a maximum of three times. In addition, employers should be aware that:
- To qualify for COVID-specific paid sick leave benefits, an employee must be under an order of quarantine or isolation.
- The second and third orders of quarantine or isolation must be based on the employee testing positive for COVID-19.
- Also, an employee under a second or third order of quarantine or isolation must submit documentation to their employer from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19, unless the employer administered the test. Therefore, employers are not required to accept the unverified results of an at-home COVID-19 self-test.
- Employers must accept a properly completed “Affirmation of Quarantine” or “Affirmation of Isolation” as a valid order of quarantine or isolation.
- If an employee, not otherwise subject to an order of quarantine or isolation, is not allowed by their employer to work due to actual or potential exposure to COVID-19, the employer must continue to pay the employee their regular wages until either: 1) the employer permits the employee to return to work, or 2) the employee becomes subject to an order of quarantine or isolation. Once subject to an order of quarantine or isolation, the employee is then eligible for COVID-specific paid sick leave, or other COVID-specific paid leave benefits as required by law.
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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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