The New York State’s Department of Labor (“NYSDOL”) recently issued new Quarantine Leave guidance for 2021 – guidance that is certainly controversial in that it seemingly goes beyond the statutory text of the NY COVID-19 Quarantine Leave Law to create expansive new employer mandates.  We previously wrote about NY’s COVID-19 leave requirements here and here.  While the new guidance seems ripe for legal challenge, it nonetheless reflects the new position of the NYSDOL.  Employers should review this new guidance – keeping in mind its informal, non-binding nature – as the pandemic continues to affect leave decision-making.

Key Provisions of the New NYSDOL Guidance

Subsequent Rounds of COVID-19 Leave for Positive Employees

First, the new NYSDOL guidance declares that an employee who has already used COVID-19 leave because of a mandatory quarantine or isolation period (for themselves or their minor dependent children) may become eligible for a second or even a third round of COVID-19 leave where the employee subsequently receives a positive COVID-19 diagnostic test result.  In such a scenario, the guidance states that the COVID-19 positive employee is placed under an order of mandatory isolation and requalifies for COVID-19 leave, even where the employee has previously exhausted his or her leave benefits under the law.  The positive employee must submit documentation from a licensed medical provider or testing facility showing that they have tested positive, except in instances where the employer itself administered the test that resulted in the positive result.

Leave Extension for Employees Who Continue to Test Positive

Second, the guidance asserts that an employee who continues to test positive for COVID-19 after completing a full 10-day quarantine or isolation period is deemed entitled to a second period of mandatory isolation, must not report to work, and should be provided a second round of COVID-19 leave by his or her employer.  New York previously reduced its period of quarantine or isolation such that employees are able to return to work after 10 days (instead of the previous 14) from the onset of symptoms, the time of close contact exposure, or after a positive test result. 

New Pay Mandate for Cautious Employers

Third, the guidance provides that where an employer prohibits an employee from reporting to the workplace because of a potential COVID-19 exposure that does not otherwise qualify the employee for an order of isolation or quarantine, the employer must pay the employee at his or her regular rate until: (1) the employer allows the employee to return to work; or (2) the employee qualifies for an order of isolation or quarantine.  This guidance provision seems to flatly contradict the text of the COVID-19 Quarantine Leave Law, which only makes employees eligible for paid leave where they are subject to an order of isolation or quarantine under the law. 

Key Takeaways

We highlight a few key takeaways as employers grapple with these new considerations:

• The guidance declares that “in no event shall an employee qualify for sick leave . . . for more than three orders of quarantine or isolation.”  While it is unclear from where this limiting principle stems, NYSDOL is essentially stating employers may be on the hook for multiple periods of COVID-19 leave.  For large employers (those with 100 or more employees) the NYSDOL guidance would require not just 14 days of paid COVID-19 leave as the law’s text provides, but potentially 28 or even 42 days of paid COVID-19 leave where an employee requalifies for an order of mandatory isolation because of a positive test result.  For medium-sized employers (those with 11-99 employees) and small employers with net incomes of more than $1 million (10 or fewer employees), it could mean providing up to 10 or 15 days of paid sick leave instead of the 5 days provided under the law’s text.   

• The guidance does clarify that upon a second or third round of COVID-19 leave, employers can affirmatively request the employee’s positive COVID-19 diagnostic test result – a position NYSDOL has not taken with respect to the initial round of COVID-19 leave.

• Importantly, the guidance recurrently asserts that there is no recommendation, much less a requirement, that an employee be tested to discontinue isolation or quarantine.  Instead, employees who complete a 10-day quarantine or isolation period may return to work without receiving a COVID-19 test.  With employees able to return to work in accordance with New York guidance without needing a diagnostic test at the end of their isolation or quarantine period, employers may be reticent to require or recommend that employees seek additional testing when doing so could open the door to a protracted period of employer-paid leave (which may create an undesirable incentive).

• As noted above, this guidance does not rise to the authority of binding regulation, and may be subject to legal challenge.  Nonetheless, the guidance offers New York employers insight into how the State currently views the contours of the law.  We will keep you posted on further legal developments regarding this guidance.