By Joseph S. Brown, Esq.
New York has officially changed its quarantine guidelines to be similar to the Centers for Disease Control's (CDC) updated guidelines, which now recommend that people who have may been exposed to the coronavirus should quarantine for 10 days, depending on one's test results and symptoms. The CDC and New York guidelines previously recommended a 14-day quarantine period.
This alert summarizes the updated NYS guidelines and the implications for employers with respect to paid leave under NYS COVID-19 Paid Sick Leave and the federal Families First Coronavirus Response Act (FFCRA), which was not extended beyond December 31, 2020.
Updated Guidance from NYS Department of Health
On December 26, 2020, the New York State Department of Health issued a document entitled “Health Advisory: Quarantine for Persons Exposed to COVID-19”, which is available here. New York – aligning itself with the CDC’s guidance from December 2, 2020 – explains that quarantine for individuals exposed to COVID-19 can end after ten days without a testing requirement if no symptoms have been reported during the quarantine period.
- Individuals must continue daily symptom monitoring through Day 14;
- Individuals must be counseled to continue strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene and the use of face coverings, through Day 14; and
- Individuals must be advised that if any symptoms develop, they should immediately self-isolate and contact the local public health authority or their healthcare provider to report this change in clinical status and determine if they should seek testing.
These quarantine requirements are also applicable to travelers who are not essential workers and/or who did not complete the testing requirements described in Executive Order 205.2, which allowed out-of-state travelers to test out of the mandatory 14-day quarantine. Our previous alert on these requirements can be found here.
The updated guidance from NYS quickly prompted many local departments of health to update their quarantine guidance. For example, on December 29, 2020, Erie County Department of Health updated its website with the new guidance and relevant documents. Significantly, Erie County’s Department of Health recommends that “[c]lose contacts of a positive case should have a diagnostic COVID-19 test about 5 to 7 days after their last date of exposure to the positive case. A negative diagnostic COVID-19 test does not end or shorten the quarantine period.”
Businesses should check their local health departments for the most up-to-date guidance to ensure employees are following the appropriate procedures. Health care providers and those in direct care settings should take note that the NYS Department of Health also updated its “Health Advisory: Revised Protocols for Personnel in Healthcare and Other Direct Care Settings to Return to Work Following COVID-19 Exposure” available here. We recommend that businesses modify their existing policies and procedures to ensure consistency with the updated guidance.
Expiration of the FFCRA and Implications for NYS Employers
During any quarantine period mandated by the new guidelines, employees who are not able to work remotely may be eligible for leave during any period of quarantine under NY’s COVID-19 Paid Sick Leave Law or the federal Families First Coronavirus Response Act (FFCRA) – which applies to most employers with fewer than 500 employees. But there is one significant development: Congress was not able to negotiate an extension of FFCRA leave beyond its current expiration date of December 31, 2020.
Instead, the COVID-19 stimulus package signed by President Trump on December 27, 2020 includes a provision – effective January 1, 2021 – which allows a covered employer to voluntarily continue to provide emergency paid sick leave or emergency paid FMLA Leave under FFCRA (for the same reasons as available under the original statute) and claim the payroll tax credit associated with this leave. The tax credit may only be claimed for leave taken by employees through March 31, 2021. [UPDATE: On December 31, 2020, the U.S. Department of Labor updated its FFCRA Questions and Answers page with questions 104 and 105 to address issues related to expiration of the FFCRA.]
Most commentators agree that the amendment does not create a “new bucket” of FFCRA leave for employees on January 1, 2021. Rather, the amendment merely extends the payroll tax credit for an employee's use of the original allotment of FFCRA leave through March 31, 2021, if an employer voluntarily extends the leave.
With the expiration of the FFCRA, employers may have some difficult decisions to make as to how they will account for employees' time off for COVID-19-related absences. Here are a few options:
Be sure to comply with your obligations, if any, under state laws, such as New York’s Paid COVID-19 Leave Law, which does not expire on December 31, 2020. Our prior alerts on this law are available here and here.
Rely on your existing PTO /vacation/ sick leave benefits. New York employees may also be eligible for leave under New York State’s Paid Sick Leave Law, which goes into effect on January 1, 2021. If your business has not already done so, it should review and update their sick leave policies to ensure compliance with the law. Our prior alerts on this law are available here and here.
As explained above, a business may voluntarily extend the FFCRA through March 31, 2021 and claim the payroll tax credit for any additional leave taken. Employers should be aware this this option could impact paid-FMLA leave depending on how the employer calculate its FMLA leave year (rolling vs. calendar year basis). After March 31, 2021 (without further extensions), any COVID-19-related leave provided by employers will be solely at the employer's expense.
Grant unpaid leaves of absence but no other benefits during the quarantine period. Even assuming an employee is not eligible for paid leave during the quarantine period, employers should be encouraging sick employees – or those who have been in contact with someone who has COVID-19 – to stay out of the workplace until is deemed safe for them to return.
Because many of the options outlined above may be confusing, overlap with other employment law concerns, or may be subject to constantly evolving guidance from regulators, employers are well advised to consult with experienced employment counsel to ensure compliance.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
To subscribe directly to these alerts, please sign up for our Employment & Business Litigation Pointers newsletter.