1-25-21 Client Alert -Updated COVID Sick Leave Guidance

Late last week, New York State issued updated guidance related to employers' obligations for New York State COVID Sick Pay. A long time coming, this guidance finally provided a concrete answer to the question of whether employees outside of the health care industry are entitled to multiple paid COVID leaves. Unfortunately, for New York employers, the answer is a resounding "yes".

Companies should update their COVID leave policies immediately. Here is what you need to know:

1. Employees are not and cannot be required to obtain a second COVID test prior to returning to work following a mandatory or precautionary period of quarantine or isolation (except for those workers in nursing homes).
2. If an employee subsequently tests positive at any time following a prior period of quarantine or isolation, they are automatically subject to another period of isolation (the employee need not wait for a second order of isolation). The employee is entitled to a second paid COVID leave, even if they were already paid for their prior period of quarantine or isolation. In order for an employee to use this second paid leave, he/she must submit a copy of their positive test unless the test was conducted by the employer.
3. In the event that an employee who has been subject to a period of quarantine or isolation continues to test positive immediately following expiration of that period, the employee must not return to work. The employee will be automatically subject to a second period of isolation. The employee must submit a copy of their positive test unless the test was conducted by the employer.
4. If an employer requires an employee who is exhibiting COVID symptoms to remain at home and not report to work, although the employee is not subject to an order of quarantine or isolation, the employer must continue to pay the employee until the employer allows them to return or they are subject to a quarantine or isolation order, at which time they would become eligible for New York State COVID Sick Pay. Please note that, pursuant to the New York State Department of Health guidance dated May 31, 2020, which remains in place, as well as the New York Forward Re-Opening Guidelines for businesses, previously issued, an employer MUST NOT allow an employee displaying COVID symptoms to return to work until at least 10 days have passed since the onset of symptoms or a negative COVID test. As such, this guidance now appears to add an independent obligation for employers to continue to pay employees during a period in which they are symptomatic outside of the New York State COVID Sick Pay requirements. Notably, the guidance does not suggest whether employers can require employees to use PTO or other company-provided leave to cover this obligation; however, to the extent that an employer provides leave greater than the mandated New York State Paid Sick Leave (non-COVID), employers should be entitled to require use of such PTO as it is a benefit the employer is not otherwise obligated to provide.
5. An employee shall be limited to a maximum of three paid COVID sick leaves, the second and third of which must be the result of a positive test pursuant to sections 2 and 3 above. As such, if an employee is symptomatic and requires leave under section 4 above, it appears that the employee will only be entitled to one such leave unless they test positive for COVID.

The State's updated guidance can be found at: https://dol.ny.gov/system/files/documents/2021/01/covid-19-sick-leave-guidance_1.pdf

Please reach out to a member of our COVID Task Force or our Labor & Employment Practice Group with questions.