New York State Provides Guidance for Obtaining Orders of Quarantine or Isolation, and Specifies Options for Employees Who Cannot Timely Do So

The New York State Workers’ Compensation Board has issued guidance attempting to clarify how employees may obtain an order of quarantine or isolation for purposes of qualifying for benefits under New York’s Quarantine Leave Law (QLL), which we previously discussed here, here, and here.

New York had previously issued guidance that the “new law provides benefits in cases where an individual is under an order of quarantine – either mandatory or precautionary,” and explained that “[e]ntities that may issue an ‘order’ include the State of New York, New York State Department of Health, local Board of Health or any government entity authorized to issue such order.”

However, employees will now have easier access to benefits under the QLL insofar as the guidance expands the eligibility for benefits to include those employees who cannot immediately obtain an order of quarantine or isolation from the aforementioned entities.

Qualifying Without an Order

Specifically, the guidance states that, in the absence of an immediate order of quarantine or isolation from a local health department (LHD), an employee may still qualify for leave if the employee:

• (i) Submits documentation from a licensed medical provider who has treated the employee attesting to the fact that the employee qualifies for the requested order of quarantine or isolation; and
• (ii) Follows up with the LHD to obtain the order and submit it to the insurance carrier as soon as it is available (LHDs are required to provide the order within 30 days).

Required Medical Documentation

The guidance further identifies the required documentation a licensed medical provider must provide to an employee to constitute an order of Mandatory Isolation, Mandatory Quarantine, or

Precautionary Quarantine:

• 1. If the employee is subject to Mandatory Isolation, an attestation that the employee meets one or more of the following criteria:
  
  • The employee has tested positive for COVID-19, or
  • Testing is currently not available to the employee, but the employee is experiencing symptoms consistent with COVID-19, and has had contact with an individual known to have COVID-19.

• 2. If the employee is subject to Mandatory Quarantine, an attestation that the employee meets one or more of the following criteria:
  
  • The employee has been in close contact with someone who has tested positive for COVID-19 or is currently in mandatory isolation, or
  • The employee is symptomatic and has returned within the preceding 14 days from a country designated by the Centers for Disease Control with a level-2, -3, or -4 advisory for COVID-19.

• 3. If the employee is subject to a Precautionary Quarantine, an attestation that the employee meets one or more of the following criteria:
  
  • The employee has been in close contact with someone who has tested positive for COVID-19 or is currently in mandatory isolation, or
  • The employee has been determined to have had proximate exposure to an individual who has tested positive for COVID-19.

Job Protected Leave for Precautionary Quarantine

Furthermore, provided that the employee follows the process described above for obtaining an order, the guidance states that an employer who “sends employees home on a precautionary quarantine” must provide the affected employees with job protected leave, COVID-19 sick leave, and/or access to PFL and short-term disability benefits through its insurance carrier for the duration of the quarantine.

State Guidance Subject to Change

When approaching personnel issues related to the QLL, employers should be mindful that guidance from the state in the form of online content is subject to revision, without notice, and should proceed with caution when attempting to comply. Online guidance from the state is available here.

Since guidance is changing rapidly, we advise all employers to stay up to date on relevant guidance and to consult with their counsel before making decisions related to the QLL.

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.