On January 20, 2021, the New York Department of Labor issued Guidance on the Use of COVID-19 Sick Leave (Guidance). The law provides paid and unpaid sick leave with access to expanded Paid Family Leave and temporary disability depending on the size of the employer as follows:
- Small businesses with 10 or fewer employees as of January 1, 2020, and that had a net annual income less than $1 million last year, employees can access paid leave benefits through the employer’s Paid Family Leave and disability benefits policy, for the duration of the order of quarantine or isolation.
- Medium businesses with 11-99 employees as of January 1, 2020, and smaller employers (1-10 employees) that had a net annual income greater than $1 million last year must provide employees with at least five days of job protected paid leave for the duration of the order of quarantine or isolation.
- Large businesses with 100 or moreemployees as of January 1, 2020, must provide employees with at least 14 days of job protected paid sick leave for the duration of the order of quarantine or isolation.
- Public employers (regardless of the number of employees) must provide employees with at least 14 days of job protected paid sick leave for the duration of the order of quarantine or isolation.
The Guidance provides that employees are entitled to COVID-19 sick leave under the following circumstances:
- With the exception of nursing home staff, 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 an employee subsequently receives a positive diagnostic test result for COVID-19 they cannot return to work and will be deemed subject to a mandatory order of isolation and entitled to sick leave whether or not the employee has already received sick leave for the first order of quarantine or isolation. The employee must submit documentation from a medical provider or testing facility of the positive COVID-19 results unless the employer gave the employee the COVID-19 test.
- An employee will be deemed as subject to a second mandatory order of isolation and entitled to sick leave if they continue to test positive for COVID-19 after a quarantine or isolation period. However, the employee must submit documentation from a medical provider or testing facility of the positive COVID-19 results, unless the employer gave the employee the COVID-19 test.
- If an employer requires an employee who is not subject to a mandatory or precautionary order of quarantine or isolation to remain out of work due to exposure or potential exposure to COVID-19, the employer must continue to pay the employee at their regular rate of pay until:
- The employer allows the employee to return to work; or
- The employee becomes subject to a mandatory or precautionary order of quarantine or isolation.
- Employees can qualify for COVID-19 sick leave for no more than three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test based on paragraphs one and two above.
Next Steps for Employers
All New York employers are encouraged to consult with their legal counsel regarding their obligations to comply with the NY DOL’s updated guidance as well as any formal regulations issued concerning COVID-19 measures in the workplace by applicable state agencies.
