New York Imposes Employer Obligations to Provide Leave Related to Quarantines During COVID-19 Pandemic

February 2, 2021
February 2, 2021 Update. On January 20, 2021, the New York State Department of Labor issued supplemental guidance on the application of New York’s COVID-19 leave law (the “Act”). This guidance addresses situations in which employees may be eligible for additional sick leave under the Act, and has been incorporated into this updated post. 
 
June 30, 2020 Update. On June 26, 2020, New York Governor Andrew Cuomo signed an Executive Order which, among other things, amends the permissible reasons for an employee to take quarantine leave under New York law. The amendment makes employees who voluntarily travel to certain high-risk states for non-work purposes ineligible for benefits under the Act, and has been incorporated into this updated post.
 
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On March 18, 2020, New York enacted a law “providing requirements for  sick leave and the provision of certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19”. The Act requires employers to provide sick leave and guarantee job protection for employees who are quarantined because of COVID-19 and unable to work. The law goes into effect immediately.
  • Paid Quarantine Leave Requirements Based on Employer Characteristics. Under the Act, employers with 11 or more employees as of January 1, 2020 and employers with a net income of more than $1 million in the previous tax year (regardless of the number of employees) must provide paid leave to any employee who is unable to work because of a mandatory or precautionary quarantine or isolation order due to COVID-19 as issued by the State of New York, the New York Department of Health, a local board of health, or any governmental entity authorized to issue such an order. The Act does not impose obligations on employers if an employee is not subject to an order and voluntarily chooses to quarantine. The number of paid leave days varies based on the size of the employer as of January 1, 2020 and the employer’s net income in the previous tax year, as outlined below. The Act does not provide guidance on how to count employees.
    • 10 or Fewer Employees & Annual Net Income of $1 Million or Less.  Employers with 10 or fewer employees and an annual net income of $1 million or less must provide unpaid leave until the end of the quarantine.
    • 10 or Fewer Employees & Annual Net Income Greater than $1 Million.  Employers with 10 or fewer employees and an annual net income greater than $1 million must provide at least 5 days of paid leave and unpaid leave until the end of the quarantine.
    • 11 to 99 Employees. Employers with 11 to 99 employees, regardless of net income, must provide at least 5 days of paid leave and unpaid leave until the end of the quarantine.
    • 100 or More Employees. Employers with 100 or more employees, regardless of net income, must provide at least 14 days of paid leave.
    • Public Employers. Public employers must provide at least 14 days of paid leave. 
       
  • Independent of Other Sick Leave. Significantly, the paid leave required under this Act must be provided “without loss” of an employee’s accrued sick leave. 
     
  • Employee Must Be Unable to Work. The quarantine leave provisions do not apply where an employee is asymptomatic or has not been diagnosed with a medical condition and is “physically able to work” while quarantined, whether through remote work or other means.
     
  • Job Protections. If an employee takes leave under the Act, the Act requires all employers (regardless of number of employees) to provide job protection. An employee must be restored to the same position held prior to the leave, with the same pay and other terms of employment. An employer may not in any manner discriminate or retaliate against an employee for taking leave under the Act.
     
  • Exception for Employees Returning from Certain Non-Business Travel. Under the Act, employers are not required to provide paid leave to employees who traveled for non-work purposes to a country with a level two or three travel health notice (as determined by the Centers for Disease Control and Prevention), if the employee was provided notice of the travel health notice and the limitations of the Act before traveling. Such employees may still use accrued leave provided by the employer and, if accrued leave is not available, employers must provide unpaid leave to such employees. As amended by Executive Order No. 202.45, and further amended by Executive Order 205.3, employees are also ineligible for benefits under the Act if they voluntarily travel to any state other than a contiguous state for more than 24 hours, or to a country or territory that is subject to a CDC Level 2 or higher risk level.
     
  • Additional Mandatory Quarantine or Isolation. Employees may only qualify for sick leave under the Act a total of three times, and the second and third periods of leave must be based on a positive COVID-19 test rather than, for example, being in close contact with someone who tested positive for COVID-19.
    • Mandatory Quarantine or Isolation. An employee who returns to work following a period of mandatory quarantine or isolation is not required to be tested for COVID-19 prior to returning to work, with the exception of nursing home staff; however, should that employee subsequently test positive for COVID-19, he or she must not report to work. The employee shall be deemed to be subject to a mandatory order of isolation from the Department of Health and is entitled to sick leave as required by the Act, regardless of whether the employee has already received sick leave for the first period of quarantine or isolation.
      • The employee must submit documentation from a licensed medical provider or testing facility attesting that he or she has tested positive for COVID-19. Documentation does not need to be submitted if the employer provided the COVID-19 test that showed the positive result.
    • Order of Quarantine or Isolation. Although employees are not recommended to be tested for COVID-19 to discontinue quarantine or isolation, if an employee is subject to an order of quarantine or isolation and continues to test positive for COVID-19 after the period or quarantine or isolation, the employee must not return to work. The employee shall be deemed to be subject to a second mandatory order of isolation from the Department of Health and is entitled to sick leave as required by the Act for the second period of isolation.
      • The employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19 subsequent to completing his or her initial period of isolation. Documentation does not need to be submitted if the employer provided the COVID-19 test that showed the positive result.
    • Employer Mandate to Remain Out of Work. Employers must continue to pay any employee who is required by the employer to remain out of work due to exposure or potential exposure to COVID-19, but who is otherwise not subject to a mandatory or precautionary order of quarantine or isolation. The employee must be paid at his or her regular rate of pay until the employee is permitted to return to work or the employee becomes subject to an isolation or quarantine order, at which time the employee will receive COVID-19 sick leave under the Act for the period of time that the employee is subject to the order.
       
  • Paid Family Leave & Disability Coverage. The Act allows employees receiving less than 14 days of paid quarantine leave (that is, those employed by employers with less than 100 employees) to use New York Paid Family Leave and expands eligibility for disability benefits for the period of quarantine. The Act amends New York law regarding family leave and disability benefits in the following ways:
    • Definition of Disability. The Act expands the definition of “disability” to include “any inability” to perform regular duties of employment, or any other employment an employer may offer, because of a mandatory or precautionary quarantine or isolation order due to COVID-19 issued by the State of New York, the New York Department of Health, a local board of health, or any governmental entity authorized to issue such an order, after an employee has exhausted all paid leave provided by an employer under the Act.
    • Timing of Payments. Disability benefits available under the Act are payable on the first day of disability.
    • Definition of Family Leave. The Act expands the definition of “family leave” to include any leave taken from work (1) when an employee is subject to a quarantine order, and (2) to provide care for a minor dependent child of the employee who is subject to a quarantine order. 
    • Disability and Family Leave Concurrent. Eligible employees may receive disability and family leave benefits available under the Act concurrently, starting on the first full day of unpaid leave due to a quarantine order. An employee may not receive more than $840.70 in paid family leave per week.
    • Calculating Disability Benefits. Eligible employees are entitled to receive disability benefits equal to the difference between the maximum weekly family leave benefit ($840.70) and the employee’s total average weekly wage from each covered employer, with a maximum weekly disability benefit of $2,043.92.
       
  • Proof. A quarantine order is sufficient proof of disability or need for family leave.
     
  • Notice. Employers should inform their employees that benefits under the Act are available to them, should they or their minor dependent child, be subject to a mandatory or precautionary order of quarantine or isolation.
     
  • Interaction with Federal Leave and Benefits. If the federal government provides leave or benefits to employees related to COVID-19, such as those required by the Families First Coronavirus Response Act passed on March 18, 2020, employees must take the federal paid leave and disability benefits first. If the Act provides leave or benefits greater than allowed under federal law or regulation, employees can claim additional leave and benefits under the Act in the amount of the difference between the federal benefits and the benefits available under the Act.
     
  • Interaction with Local Sick Leave Laws. New York State employers would remain subject to local sick leave ordinances (such as those in New York City) that meet or exceed the requirements of the Act.
The Act authorizes the New York Commissioner of Labor to promulgate regulations and guidance to effectuate the provisions of the Act, including standards for the use, payment, and employee eligibility of leave under the Act. 
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.

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