On January 20, 2021 – nearly a year after the law’s effective date – the New York Department of Labor (“NYDOL”) issued new guidance (the “Guidance”) for employers regarding the scope of available sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“Quarantine Leave”).  The Guidance creates new obligations for employers in New York and clarifies certain limitations on Quarantine Leave.  It is also intended to supplement other guidance previously issued by the NYDOL, which remains in effect.

Quarantine Leave Overview

The statute authorizing Quarantine Leave, which was originally passed on March 18, 2020, requires New York employers to provide paid or unpaid job-protected leave to employees subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the Department of Health, a local board of health, or any government entity duly authorized to issue such an order due to COVID-19.  The level of benefits available to employees is linked to employer size and revenue, as follows:

• 10 or fewer employees as of January 1, 2020 with a net income of less than $1 million in 2019: unpaid Quarantine Leave for the duration of the quarantine order, though the employee may apply for and receive a combination of Paid Family Leave and disability benefits up to a maximum of $2,884.62 per week.

• 10 or fewer employees as of January 1, 2020 and a net income of more than $1 million in 2019, or 11-99 employees: five (5) days of paid Quarantine Leave at the employee’s regular rate of pay, funded by the employer. After paid Quarantine Leave is exhausted, the employee may apply for and receive a combination of Paid Family Leave and disability benefits, up to a maximum of $2,884.62 per week, for the duration of the quarantine order.

• 100+ employees: fourteen (14) days of paid Quarantine Leave at the employee’s regular rate of pay, funded by the employer.

Quarantine Leave benefits are only available during the dates of the underlying quarantine order, and must be provided separately from an employee’s sick leave or other paid time off accruals.  An employee is not eligible for Quarantine Leave if he or she is asymptomatic and is physically able to work through remote access.  As of this writing, the statute authorizing Quarantine Leave has no sunset date.

The Guidance

The NYDOL’s January 20, 2021 Guidance clarifies the scope of available Quarantine Leave and creates new obligations for employers.  Key takeaways from the Guidance are summarized below.

Additional Paid Leave for Employees Who Do Not Qualify for Quarantine Leave but Are Excluded From the Workplace

Significantly, the Guidance appears to create a new paid leave obligation for employees who are not eligible for Quarantine Leave, but who are excluded from the workplace for safety reasons.  According to the Guidance:

[A]n employer [who] mandates that an employee who is not otherwise subject to a mandatory or precautionary order of quarantine to remain out of work due to exposure or potential exposure to COVID-19, regardless of whether such exposure or potential exposure was in the workplace, the employer shall continue to pay the employee at the employee’s regular rate of pay until such time as the employer permits the employee to return to work or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which time the employee shall receive [Quarantine Leave] . . . for the period of time the employee is subject to such mandatory or precautionary order of quarantine.

(emphasis added).

With this language, the Guidance seemingly requires New York employers to pay employees who have been excluded from the workplace due to exposure concerns, but who have not yet obtained a quarantine order.  The Guidance also seems to require employers to pay employees who have been excluded from the workplace but do not qualify for a precautionary order of quarantine under Department of Health guidance (for example, an employee who had close contact with someone who was symptomatic, but untested).  As a result, New York employers currently appear obligated to provide employees with more than five or 14 days of fully-paid leave in certain circumstances.  The Guidance is silent as to whether employees may be required to use accrued paid time off during this period, but doing so may give rise to an interference claim under the New York State Paid Sick Leave Law or New York City Earned Sick and Safe Time Act.

Limited Use of Quarantine Leave

The Guidance clarifies, for the first time, that employees may take Quarantine Leave no more than three times.  The second and third instances of Quarantine Leave must be based on a positive COVID-19 test.

To validate a positive COVID-19 test result, employees may be required to submit supporting documentation from a medical provider or testing facility.  However, employees may not be required to submit supporting documentation of a positive result if the employer gave the COVID-19 test that yielded the positive result.  Stated another way, employers who test their workers cannot require a positive employee to obtain a “second opinion.”

Negative Test Not Required to Return to Work

 Employees may return to work from Quarantine Leave without producing a negative test, or being tested at all.  The Guidance explicitly states that testing to discontinue isolation or quarantine is not recommended.  However, employees who return to work and later test positive for COVID-19 will be deemed subject to a mandatory order of isolation from the Department of Health and entitled to additional Quarantine Leave.

Quarantine Leave May Be “Stacked”

 As set forth above, employees are not required to produce a negative test at the end of Quarantine Leave to return to work.  However, to the extent an employee chooses to test at the end of the leave period and tests positive, the employee will be deemed subject to a second mandatory order of isolation from the Department of Health and entitled to a consecutive period of Quarantine Leave.  For large employers, this means that employees who test positive at the end of a leave period may be entitled to 28 consecutive days of paid Quarantine Leave.

New York employers should take note of the Guidance and account for it in implementing their COVID-19-related leave policies.  In light of the expansive changes implemented by and ambiguities associated with the Guidance, we anticipate further regulatory guidance associated with (and potentially legal challenge to) the Guidance in its current form.  We will continue to monitor developments regarding Quarantine Leave and provide updates as they become available.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.