But Wait There’s More: New York Expands COVID-19 Employee Leave Benefits

The New York State Department of Labor (NYSDOL) issued guidance on January 20, 2021, clarifying certain aspects of New York’s COVID-19–related quarantine leave law and expanding certain benefits under the law. Parts of the guidance came as a surprise to some employers, as they appear to impose additional obligations on employers to pay employees if they require the employees to remain out of work due to potential COVID-19 exposure.

As a reminder, under New York’s COVID-19 leave law, employees are eligible for paid leave for the days they would have worked or were scheduled to work in a 5-day or 14-day period (depending on employer size).

Three paid quarantine periods. The guidance clarifies that employees can qualify for paid leave for up to three orders of quarantine or isolation. Employees who continue to test positive for COVID-19 after an initial period of quarantine may be eligible for a second period of leave. The second and third orders of quarantine or isolation, however, must be supported by a positive COVID-19 test, and to qualify, an employee “must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19” (unless the employer administered the test).

Additional pay obligations. Finally, in the guidance, the NYSDOL takes the position that if an employer requires an employee (who is not otherwise subject to a quarantine order) to remain out of work due to potential or actual COVID-19 exposure, the employer must pay the employee for the time the employer requires the employee to remain out of work or until the employee “becomes subject to a mandatory or precautionary order of quarantine or isolation” (at which point the employee would become eligible for paid quarantine leave). According to the NYSDOL, these rules apply “regardless of whether such exposure or potential exposure [occurred] in the workplace.”

Takeaways

At this point, much remains unclear regarding the logistics of the section of the guidance that requires employers to pay employees who might have been exposed to COVID-19. For example, it is unclear whether the NYSDOL would permit employers to charge a paid time off (PTO) bank for this time. Employers may want to stay tuned for additional updates from the NYSDOL as these matters continue to evolve.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.