Before the new year, New York’s COVID-19 leave law received less attention than its federal counterparts, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). However, because paid leave under EPSLA and EFMLEA expired on December 31, 2020, New York’s law is now the subject of renewed attention.
We blogged about the New York law when it was first enacted in March 2020. By way of background, the law requires employers to provide leave to employees who become subject to a government order of quarantine or isolation due to COVID-19. The duration of leave to be provided, whether that leave will be paid or unpaid, and whether disability and/or paid family leave benefits are available to the employee all depend on an employer’s size and/or income. The largest employers–those with one hundred employees or more–must provide fourteen calendar days of paid leave at an employee’s regular rate of pay.
As the pandemic unfolded, it became apparent that employees might meet the criteria for an order of quarantine or isolation more than once. For example, an employee may need to quarantine due to mere exposure to the virus at one point, and later the same employee might actually contract the virus and need to isolate. It is also conceivable that the same person could contract the virus more than once and would be subject to an isolation order in each instance. The law does not explicitly provide for multiple instances of paid leave in these situations.
Late last week, however, the New York State Department of Labor (“NYSDOL”) issued a guidance document (“Guidance”) that addresses this topic. The Guidance indicates that employees may exercise their rights to paid leave under the New York law up to three times, provided that the second and third occasions are necessitated by the employee testing positive for COVID-19.
First, the Guidance considers situations in which an employee takes leave because he or she is subject to an order of quarantine or isolation, returns to work but later tests positive for COVID-19. The Guidance states that such an employee must not report to work after testing positive and is instead entitled to another period of leave. The employee need not provide his or her employer with a copy of another government order of isolation or quarantine. The employee must only provide proof of a positive test, unless his or her employer is the one who administered the test (in which case the employer should already have the result).
Second, the Guidance considers situations in which an employee takes leave but, at the conclusion of leave and before returning to work, tests positive for COVID-19. Again, the employee must not report to work and is entitled to another period of leave. An employee in this situation is also deemed to be subject to a government order of isolation and need only provide his or her employer with proof of a positive test.
The Guidance also addresses situations in which an employer prohibits an employee from reporting to work due to a possible exposure to the virus, notwithstanding that the employee is not subject to a quarantine or isolation order. The employer must pay the employee in this situation but may not treat the employee as having exhausted all or part of his or her paid leave allotment.
There is a significant chance that the Guidance will be challenged by employers. The law that the Guidance is based on does not explicitly set out any requirement that employers provide their employees with multiple rounds of paid leave. As a result, it is important for employers to stay abreast of further developments.
For questions about COVID-19 leave, please contact Jessica Baquet at firstname.lastname@example.org