Latest NY Labor Department Guidance on COVID-19 Sick Leave

In March 2020, New York State passed emergency legislation in response to the COVID-19 pandemic that requires employers to provide job-protected COVID-19 sick leave to employees subject to an order of quarantine or isolation. See LR’s prior What You Need to Know Now updates on the legislation here and here. On January 20, 2021, the New York State Department of Labor released new guidance on NYS COVID-19 sick leave.

The January 2021 guidance clarifies that employees are entitled to take multiple periods of sick leave based on a positive COVID-19 test and that employees are not required to be tested before returning to work (except for nursing home staff). The guidance highlighted two applicable situations:

1. An employee who returns to work after concluding an order of quarantine or isolation, but later receives a positive COVID-19 test, is subject to an additional mandatory period of quarantine or isolation.
2. An employee subject to an order of quarantine or isolation who tests positive for COVID-19 at the end of the quarantine or isolation period is subject to an additional mandatory period of quarantine or isolation.

An employee in either situation will be entitled to sick leave for the additional period of quarantine under the NY COVID-19 sick leave law, whether or not they received sick leave for the first period of quarantine. The document specifies that an employee may not qualify for sick leave under the NY COVID-19 sick leave law “for more than three orders of quarantine or isolation, and that “the second and third orders must be based on a positive COVID-19 test.” Note, however, that a worker may be eligible for additional sick leave under the separate New York Sick Leave Law.

In either situation, the employee should not report to work. The employee must submit to their employer documentation from their medical provider or testing facility indicating that they tested positive for COVID-19. The employee does not need to submit documentation of a positive test result if their employer administered the test.

The guidance also clarified an employer’s obligations when an employer instructs an employee not to report to work (who is not otherwise subject to an order of quarantine or isolation) because of potential exposure to COVID-19. In this situation, the employer must continue to pay the employee their regular wages until the employer later permits the employee to return to work or the employee becomes subject to an order of quarantine or isolation and becomes entitled to sick leave under the NY COVID-19 sick leave law.

The new guidance supplements prior guidance applicable to COVID-19 sick leave from the NY DOL, meaning all prior guidance remains in effect.