New York State has released online guidance for the public – including both employers and employees – related to the state’s new COVID-19 quarantine leave law (NY Quarantine Leave Law), which took effect on March 18, 2020.
As we detailed in our advisories of March 18 and 19, New York employees who are subject to a mandatory or precautionary order of quarantine or isolation will, subject to certain exceptions, be eligible for the protections and benefits of the NY Quarantine Leave Law – which include job protection and up to 14 days of employer-paid quarantine leave followed by a combination of concurrent paid family leave and short term disability benefits.
The following is a compilation of questions and answers based on the text of the NY Quarantine Leave Law and the information provided on the State’s related website.
Q: Is a note from an employee's doctor sufficient to entitle her to leave under the NY Quarantine Leave Law?
A: No. Only a mandatory or precautionary quarantine order will suffice, and the only entities that may issue such an order are the State of New York, the New York State Department of Health, a local
Board of Health, or any other government entity authorized to issue such an order. In other words, if an employee (or her minor dependent child) is not subject to a written quarantine order issued by one of the above entities, then she is ineligible for the protections and benefits of the NY Quarantine Leave Law.
Relatedly, employers should note that Governor Andrew Cuomo’s March 20 “New York State on PAUSE” executive order, which directed the closure of non-essential businesses statewide, is not a quarantine order.
Q: An employee's 13 year-old child’s school has been closed due to COVID-19. Is the employee eligible for leave under the NY Quarantine Leave Law?
A: Not necessarily. If the school is closed due to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the New York State Department of Health, a local
Board of Health, or government entity, the employee may be eligible to take paid family leave. However, a school closure for purposes of preventative social distancing will not qualify a student’s parent or legal guardian for the protections and benefits of the NY Quarantine Leave Law.
Q: May an employer require an employee to use existing accrued or allotted paid time off (including paid sick time, either under the NYC Safe and Sick Time Act, or under an employer's policy) during quarantine leave?
A: No. Employers must provide the required amount of paid quarantine leave before requiring eligible employees to use their accrued or allotted paid time off. This means that employers with policies that require the use (and, in some cases, exhaustion) of available paid time off at the start of a leave of absence must not enforce such policies insofar as compliance with existing policies would require the use of available paid time off.
Q: An employee tests positive for COVID-19 and is subject to a resulting quarantine order. Without more, is that enough to entitle her to the protections and benefits of the NY Quarantine Leave Law?
A: Yes. Under the terms of the NY Quarantine Leave Law, an employee who is subject to a valid quarantine or isolation order and has been diagnosed with COVID-19 will be eligible for the protections and benefits of the law. However, if an employee who has not yet been diagnosed with COVID-19 is asymptomatic, and is able to perform her job duties while quarantined, then she will not be eligible for the protections and benefits of the law.
Q: An employee returns from a personal trip to Iran. After experiencing symptoms of COVID-19, she seeks diagnosis, tests positive, and is subject to a quarantine order. Is the employee eligible for the protections and benefits of the NY Quarantine Leave Law?
A: No. Employees who travel to a country subject to a level-2 or -3 health notice from the U.S. Centers for Disease Control for any reason other than employer-directed business are not eligible for the protections and benefits provided under the NY Quarantine Leave Law. However, if an employee had traveled to such a country at her employer’s direction for business reasons, then that employee would be eligible for the protections and benefits provided under the NY Quarantine Leave Law.
Q: What is the process necessary for an employee to receive New York Paid Family Leave and short-term disability benefits?
A: Employees are responsible for submitting their own PFL/short-term disability paperwork to their employer’s insurance carrier.
An employee who wishes to request PFL/short-term disability benefits pursuant to the NY Quarantine Leave Law (regardless of the reason) must complete Form PFL-1.
If the employee requests leave because she is subject to a qualifying quarantine order, she must also complete Form SCOVID-19 (the entire packet is available here). If the employee requires leave because her minor dependent child is subject to a qualifying quarantine order, she must submit – in addition to a completed Form PFL-1 – a Form CCOVID-19 (the entire packet is available here).
The employee must then send copies of the completed forms to her employer; the employer then has three business days to complete the designated employer portions of the forms and return the forms to the employee. Even if the employer fails to timely complete the forms and return them to the requesting employee, the employee may still submit her application to the employer’s insurance carrier.
Importantly, along with the applicable completed forms, an employee who applies for PFL/short term disability benefits under the NY Quarantine Leave Law must also provide the insurance carrier with a copy of her mandatory or precautionary order of quarantine or isolation.
Upon receiving all required documentation, the insurance carrier then has a maximum of 18 calendar days to either pay or deny the employee’s claim.
Q: If an employee does qualify for employer-paid quarantine leave under the NY Quarantine Leave Law, at what rate must she be compensated?
A: For the duration of the employer-paid quarantine leave period (either five or 14 days, depending on the size and revenue of the employer), the employee must be paid the amount that she would have received had she continued to work her regular or actual schedule, assuming the employer’s operations had continued in their normal course. Employees who work a fixed schedule or receive a salary should continue to receive pay for the applicable leave period.
For those employees who are not paid a fixed wage, employers should determine their pay by reviewing a representative period of time from which to calculate the employee’s average daily pay rate.
Q: How must an employer calculate the number of paid days of employer-paid quarantine leave?
A: The number of employer-paid days of leave (five or 14) is based on calendar days, and the pay due to the qualifying employee must represent the amount of money that she would have otherwise received for work performed during that five- or 14-day period, had the employer’s operations been running normally.
Part-time employees should be paid for the number of days or amount of hours during the applicable five- or 14-day quarantine leave period that they otherwise would have worked or been scheduled for, assuming the employer’s operations continued in their normal course.
Q: Must a qualifying employee apply for the employer-paid portion of quarantine leave in order to receive that benefit?
A: No – employers required by the NY Quarantine Leave Law to provide either five or 14 days of paid quarantine leave must do so upon learning of facts sufficient to conclude that the employee at issue is eligible for such leave. Once an employee exhausts her entitlement to employer-paid quarantine leave, she may then apply for PFL/temporary disability benefits.
Q: Since it became available to employees on January 1, 2018, New York Paid Family Leave could not be taken for one’s own health condition. Is that still the case?
A: That had been accurate until March 18, but the NY Quarantine Leave Law (which took effect on that date) now permits the use of New York Paid Family Leave if an employee is subject to a mandatory or precautionary order of quarantine or isolation.
Q: Has the State of New York created a mechanism by which employees may complain about employers who fail to provide the paid quarantine leave required by the NY Quarantine Leave Law?
A: Yes, the Department of Labor encourages such complaints.
Q: Has the State of New York created a mechanism by which employees (and members of the general public) may complain to the New York Department of Labor about non-essential businesses requiring employees to report for in-person work despite Governor Cuomo's March 20 executive order?
A: Yes, the Department of Labor encourages such complaints, including by non-employees who observe non-essential businesses that remain open and operational notwithstanding Governor Cuomo’s March 20 executive order prohibiting non-essential businesses from having employees report to work onsite.
Employer COVID-19 Resources
Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.