By Christine Malafi
Ten months ago, in March 2020, NYS enacted legislation authorizing sick leave for employees subject to a mandatory or precautionary order of quarantine due to COVID-19. In January 2021, NYS recently issued updated guidance on the use of COVID-19 sick leave. Before diving into the updated guidance, here is a review of the initial legislation.
March 2020 NY COVID-19 Paid Sick Leave Legislation
| Number of Employees | Amount of Sick Leave | Supplemental Benefits |
| 0 – 10 employees with a net income of $1 million or less in the prior tax year | Unpaid Leave for the duration of the order | Guaranteed job protection for the duration of the quarantine orderCompensation for the duration of their quarantine through your existing Paid Family Leave (PFL) and Disability Benefits Policy (DBP) |
| 0 – 10 employees with a net income of greater than $1 million in the prior tax year | At least 5 days of paid sick leave | Guaranteed job protection for the duration of the quarantine orderCompensation for the remainder of their quarantine through your PFL and DBP |
| 11 – 99 employees | At least 5 days of paid sick leave | Guaranteed job protection for the duration of the quarantine orderCompensation for the remainder of their quarantine through your existing PFL and DBP |
| 100 or more employees | At least 14 days of paid sick leave | Guaranteed job protection for the duration of the quarantine order |
| Public employer (regardless of number of employees) | At least 14 days of paid sick leave | Guaranteed job protection for the duration of the quarantine order |
January 2021 NY COVID-19 Paid Sick Leave Updated Guidance
On January 20, 2021, NYS updated its guidance on the use of COVID-19 sick leave. This guidance supplements the prior guidance on the application of COVID-19 sick leave; all prior guidance still remains in effect. The new guidance significantly expands on employers’ obligations set forth in the prior legislation.
If an employee tests positive for COVID-19 following a period of mandatory quarantine, the employee (1) cannot report to work, (2) is automatically deemed subject to a subsequent mandatory order of isolation from the NY Department of Health; and (3) is entitled to paid sick leave under the NY COVID-19 sick leave law (even if the employee already received NY COVID-19 sick leave for the first period of mandatory quarantine). However, to receive NY COVID-19 sick leave for a subsequent time, the employee is required to submit documentation of a positive COVID-19 test result from a licensed medical provider. Employees can qualify for COVID-19 sick leave for up to three orders of quarantine.
Additionally, the guidance appears to require employers to provide employees with paid leave if the employer mandates that the employee does not report to work due to potential exposure to COVID-19. If this happens, the guidance states that the employee must be paid at their regular rate of pay until the employer allows the employee to return to work or the employee becomes subject to an order of quarantine. If the employee is subject to an order of quarantine, then the employee would receive NY COVID-19 sick leave for the duration of that order.
The COVID-19 sick leave legislation passed in 2020 provided that leave was only available in the event an employee was subject to an order of quarantine. This new guidance seems to go beyond that statute. Consequently, this updated guidance may be subject to legal challenges because the NY Department of Labor cannot create obligations that go beyond statutory requirements; the DOL can only promote regulations that interpret a statute.
If you have any questions regarding the new COVID-19 paid sick leave guidance, please contact us.
UPDATE:
March 2021 NY COVID-19 Vaccination Leave
Beginning March 12, 2021, New York employees will receive paid time off to be vaccinated against COVID-19. Both public and private employees will receive up to four hours of paid leave per injection without having to use benefit time, including New York’s mandated sick leave. Employers must pay employees their regular rate of pay for the time off. Additionally, employers cannot discriminate or retaliate against employees who request to take a leave of absence to receive a vaccination. Learn more here.