Paid Leave and Coronavirus—Part XX: New York Department of Labor Issues Guidance on State COVID-19 Paid Leave Mandate

Seyfarth Synopsis: On January 20, 2021 the New York State Department of Labor (“NYSDOL”) issued a non-binding statement titled “Guidance on Use of COVID-19 Sick Leave” (the “Guidance”). The NYSDOL Guidance pertains to the State’s COVID-19 Paid Leave Law (the “Law”), which has been in effect since mid-March 2020. Among other topics, the Guidance notably sets forth that COVID-19 paid sick leave under the Law, measured as either five or 14 calendar days based on employer size, is available to employees for up to three mandatory or precautionary orders of quarantine or isolation due to COVID-19. While there are limitations on when the second and third rounds of COVID-19 paid sick leave are available to employees, the Guidance expands this state mandate to a level not expressly stated in the Law.

As reported in Part IV, Part V and Part VII of our “Paid Leave and Coronavirus” series, the New York COVID-19 Paid Leave Law provides for job-protected employer funded paid and unpaid sick leave,[1] as well as an expansion of the state’s paid family leave (“PFL”) and statutory disability benefits, to certain employees who are “subject to mandatory or precautionary orders of quarantine or isolation” related to COVID-19. Unlike most other state and local COVID-19 emergency or supplemental paid sick leave mandates in the United States,[2] the Law does not have a specified sunset date or criteria. The specific amount and type of COVID-19 leave available to employees under the Law is as follows:

• Employers with 10 or fewer employees and a net income of $1 million or less: Must provide unpaid sick leave for the entire period of quarantine or isolation, and employees are eligible to apply for New York PFL and statutory disability benefits.[3]
• Employers with 10 or fewer employees and a net income greater than $1 million: Must provide five days of paid sick leave, and unpaid leave for the remainder of the quarantine or isolation. After exhausting the five days of paid sick leave, employees are eligible to apply for PFL and disability benefits.
• Employers with 11-99 employees: Must provide at least five days of paid sick leave, and unpaid leave through the end of the period of quarantine or isolation. After five days of sick leave, employees are eligible to apply for PFL and disability benefits.
• Employers with 100 or more employees and all public employers: Must provide at least 14 days of paid sick leave.

The state’s corresponding FAQs on the Law explain that the amount of paid sick leave is measured as calendar days, rather than workdays, “and the pay required should represent the amount of money that the employee would have otherwise received for the five or 14-day period.”

Despite being two pages long and non-binding, the NYSDOL’s January 20 Guidance reflects the Department’s current position on the Law and adds a new layer of compliance for covered employers when assessing the amount of COVID-19 paid sick leave available to an employee. Here are the highlights:

• Overall: As noted above, a primary takeaway from the NYSDOL Guidance is that COVID-19 paid sick leave under the Law is available to employees who are subject to multiple mandatory or precautionary orders of quarantine or isolation, but only (a) up to a certain cap, and (b) in certain situations.
• “Multiple Order Cap”: The Guidance makes clear that New York COVID-19 paid sick leave is only available to an employee for a maximum of three orders of quarantine or isolation, and again, only in select circumstances.
• Relevant Situations When “Multiple Order Cap” is Available: The Guidance explains that the three order maximum will only come into play in the following situations:
  • (1) When an employee is absent for a period of mandatory quarantine or isolation, returns to work, and then, at some later time (no specific time limitation established), tests positive for COVID-19; or
  • (2) When an employee who was subject to an order or quarantine or isolation continues to test positive after the initial quarantine or isolation period ends.

In these situations, the more conservative and most likely reading at this time is that the employee can receive a new allocation of New York COVID-19 paid sick leave (i.e., paid sick leave equal to what the individual would have been paid over a five or 14 calendar day period, depending on employer size, as described above) for each covered order subject to the cap.

• Other Situations Involving Multiple Covered Orders: While not expressly addressed in the Guidance, a possible related takeaway is that New York COVID-19 paid sick leave is only available to an employee for a single order of quarantine or isolation outside of the above two explicitly covered situations that can trigger additional leave. For example, if an employee is subject to an order of quarantine or isolation due to close proximity to a family member who tested positive for COVID-19, the employee could receive New York COVID-19 paid sick leave for that absence (up to the applicable amount of sick days based on employer size). If that same employee is later subject to another order of quarantine or isolation that is due to another “close proximity” event (i.e., at a public venue where someone tested positive, near another family member who tested positive, etc.), the employee would not be entitled to additional New York COVID-19 paid sick leave. However, if that employee subsequently tests positive for COVID-19, they would be entitled to additional New York COVID-19 paid sick leave per the Guidance (assuming it was their second or third such order).
• Pay Continuation Where Employer Sends Employee Home Due to Exposure or Potential Exposure: Importantly, the Guidance also appears to mandate that (a) if an employer sends an employee home from work due to COVID-19 exposure or potential exposure, regardless of whether the exposure or potential exposure occurred in the workplace, and (b) the employee is not subject to a covered order of quarantine or isolation, then (c) the employer must pay the employee at their regular rate of pay. The payment must continue until either (i) the employer allows the employee to return to work, or (ii) the employee becomes subject to a mandatory or precautionary order of quarantine or isolation. If the latter, the Guidance notes that New York COVID-19 paid sick leave would then be available to the employee.
• Additional Topics: The Guidance also provides the following instructions:
  • An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff.
  • An employee who subsequently receives a positive COVID-19 test result after the initial quarantine or isolation period ends must not report to work.
  • Upon testing positive for COVID-19, the employee will be deemed subject to a mandatory order of isolation from the Department of Health and thus entitled to COVID-19 paid sick leave. However, the employee must submit documentation from a licensed medical provider or testing facility attesting that they have in fact tested positive for COVID-19. The employee does not need to submit documentation of a positive result if the employee’s employer gave them the test for COVID-19 that produced the positive result.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with New York State and local general paid sick leave laws and paid leave requirements more generally.[4] Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.

 

 

[1] The COVID-19 paid sick leave benefits provided under the Law are in addition to any paid sick leave or other accruals that employers already provide to employees.

[2] Seyfarth’s latest paid sick leave infographic contains an interactive map breaking down, among other topics, all existing state and local COVID-19 emergency or supplemental paid sick leave mandates.

[3] The law expands the definitions of “family leave” and “disability” under the State’s PFL and Disability laws, respectively, to include COVID-19-related uses for employers with fewer than 100 employees.  “Family leave” includes leave taken by an employee from work when subject to a quarantine or isolation order, or to provide care for a minor dependent child who is subject to a quarantine or isolation order. The definition of “disability” now similarly includes an employee’s inability to perform the regular duties of their employment or duties offered by an employer as a result of a quarantine or isolation period, upon exhausting sick leave. While not completely clear, it appears that expanded PFL to care for a child who is subject to a sufficient quarantine or isolation order is available to employees regardless of their employer’s size.

[4] In addition to keeping tabs on nationwide state and local sick leave compliance as needed, employers with employees in New York should note the following with respect to state and local sick and safe time requirements that may be applicable: (1) New York State employers may also be subject to the separate statewide general, i.e., non-COVID-19, Paid Sick Leave Law; (2) New York City maintains a separate Earned Safe and Sick Time Act, and has released administrative guidance regarding Earned Safe and Sick Time Act benefits during COVID-19; and (3) Westchester County, NY employers may be subject to the County’s separate Safe Time Leave Law.