As an update to our previous alert, the New York State Department of Labor (NYDOL) issued updated guidance pertaining to New York State’s COVID-19 sick leave and job protection law (the Law). The Law calls for a maximum benefit of either 5 or 14 days of paid leave, or possibly only unpaid job-protected leave, depending on the employer’s size and/or net income. The new guidance expands upon the applicable COVID-19 paid leave available under the Law to employees working in New York.
First, the NYDOL clarified that an employee may utilize multiple leave periods under the Law. In fact, employees may qualify for a maximum of three COVID-19 leave periods. The guidance provides two scenarios in which this may arise: 1) an employee who returns to work following a period of COVID-19 quarantine, and who then later tests positive for COVID-19, must quarantine and is entitled to another period of sick leave under the Law; and 2) an employee who continues to test positive for COVID-19 after completing an initial period of quarantine, even if the employee has not yet returned to work, must continue to quarantine and is entitled to another period of sick leave under the Law. Accordingly, even if an employee used the maximum amount of sick leave during the initial period of quarantine/leave, the employee could be eligible for one or two more period(s) of sick leave per the new guidance. Notably, however, if attempting to secure protected leave for a second or third time, the employee must support the request with a positive COVID-19 test result (as opposed to close contact with a known COVID-19 patient). In practice, the employee requesting such leave must document the diagnosis and submit to their employer the confirming test results from a licensed medical provider or testing facility.
Second, the updated guidance arguably expands New York State’s COVID-19 sick leave and job protection law in the situation where the employer mandates the employee not report to work due to COVID-19 precautions and/or risks associated with exposure. The guidance states:
If an employer mandates that an employee who is not otherwise 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, regardless of whether such exposure or potential exposure was in the workplace, the employer shall continue to pay the employee at the employee’s regular rate of pay until such time as the employer permits the employee to return to work or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which time the employee shall receive sick leave as required by New York’s COVID-19 sick leave law.
In other words, unless an employee is subject to an order of quarantine under the Law, employers shall provide paid leave to all employees prohibited from working by direction of the employer as a result of precautions taken and/or risks associated with exposure to COVID-19.
We continue to track COVID-19 related updates and work closely with employers to ensure compliance with all applicable laws. Our team of labor and employment law attorneys are available to assist businesses with their understanding of and compliance with this new law and any other applicable federal and state employment laws.