By Katherine L. Wood, Esq.
As the pandemic lingers on, employers may still be receiving requests for leave from employees who have contracted or been exposed to COVID-19. On January 20, 2021, the New York State Department of Labor (“NYS DOL”) issued guidance that expands employers’ obligations to provide paid leave under the NYS COVID-19 leave law. Particularly, the new guidance addresses employer-mandated leaves related to COVID-19 and situations where an employee tests positive for COVID-19 multiple times.
Back in March 2020, we alerted employers that New York State had enacted a law that guaranteed paid sick leave for employees who were “subject to a mandatory or precautionary order of quarantine or isolation issued by New York State, the Department of Health, the local board of health, or any other authorized governmental entity.” More information about the initial legislation can be found here.
The NYS DOL guidance includes a few key points that employers must be aware of to remain compliant with the law. The guidance itself can be found here, and this article discusses the key takeaways.
Employees are entitled to paid leave if the employer requires them to remain out of work due to actual or potential exposure to COVID-19
Of the new guidance, this point may have the most immediate impact on employers. If an employer requires that an employee who has been actually or potentially exposed to COVID-19 remains out of work, the employer must pay the employee at his regular rate of pay until the employer permits him to return to work. This holds true even if the individual would not otherwise qualify for NYS COVID-19 leave and even if the actual/potential exposure did not occur at the workplace.
The NYS DOL does not specify whether this requirement could be satisfied by utilizing an employee’s paid time off or other employer-provided leave benefits such as disability. We expect challenges to this requirement, as it does not appear to be supported by the NYS COVID-19 leave legislation, however, for the moment, this requirement remains in effect.
Employees are entitled to up to 3 separate COVID-19 leaves if the leaves are based on positive tests
If an employee previously tested positive for COVID-19 and took leave, he or she is entitled to take additional leave if he or she subsequently returns another positive COVID-19 test. Employees can qualify for leave up to three (3) times if they return three (3) positive COVID-19 tests.
Documentation can be required from the employee to receive subsequent COVID-19 leave
Employers can request documentation of a positive COVID-19 test when an employee is requesting subsequent COVID-19 leave. The documentation can be from a licensed medical provider or testing facility.
No requirement for testing upon return from leave
Employees do not need to be tested when returning from COVID-19 leave. The only exception is nursing home employees.
For assistance complying with the NYS COVID-19 leave law, we recommend consulting with experienced labor and employment counsel who can assist analyzing the specific scenario at hand.
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.
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Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]
