New York State Issues Guidance on COVID-19 Quarantine Leave

The New York State Department of Labor recently issued guidance on COVID-19 Quarantine Leave with respect to leave for additional quarantine orders, leave in absence of a quarantine order, and limits on leave due to quarantine orders.

As detailed in our prior advisories, the state enacted legislation in March 2020 that provides protections and benefits to New York employees who are subject to a mandatory or precautionary order of quarantine or isolation related to COVID-19. Those benefits include job protection and paid or unpaid leave entitlements, depending on the size and income of the employer.

The most significant aspects of the guidance are as follows:

1. An employee who (i) tests positive for COVID-19 after a period of mandatory quarantine or isolation; or (ii) continues to test positive for COVID-19 beyond the quarantine or isolation period to which the employee is subject shall not report to work and shall be deemed subject to an additional period of mandatory quarantine.
   
   If the employee tests positive for COVID-19 after a period of mandatory quarantine or isolation, then that employee shall be entitled to quarantine leave in such circumstances, "whether or not the employee already has received sick leave as required by the law for the first period of quarantine or isolation."
   
   If the employee continues to test positive for COVID-19 beyond the quarantine or isolation period to which the employee is subject, then that employee "shall be deemed to be subject to a second mandatory order of isolation from the Department of Health and shall be entitled to sick leave as required by New York's COVID-19 sick leave law for the second period of isolation."
   
   In order to obtain this additional leave, the employee must provide documentation from a licensed medical provider or testing facility reflecting the employee's positive result for COVID-19 unless the employer provided the COVID-19 test.
   
   
2. If an employer requires an employee to quarantine due to exposure or potential exposure when that employee is not otherwise provided with an order to quarantine or isolate, then the employer must pay that employee his or her regular wages until the employer allows the employee to return to work or until the employee receives an order to quarantine or isolate, at which point the employee will be eligible for quarantine leave.

    

3. An employee shall not qualify for quarantine leave for more than three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test as set forth above.
   
   Importantly, this guidance clears up the frequent questions from employers since passage of the statute as to the maximum amount of quarantine leave an employee may take. Based on this guidance, it appears the New York Department of Labor has ruled that an employee may use quarantine leave for up to three COVID-19 orders. Employers are encouraged to consult counsel as they navigate employee leave relating to COVID-19.

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.

Prior Advisories

• N.Y. Governor Announces Legislation Agreement to Protect Employees in State and Their Incomes Amid COVID-19 Uncertainty, 03.18.20
  

• N.Y. Enacts Law to Protect Employees and Their Incomes Amid COVID-19 Uncertainty, 03.19.20
  

• New York State Provides Guidance for Obtaining Orders of Quarantine or Isolation, and Specifies Options for Employees Who Cannot Timely Do So, 04.01.20
  

• New York City Issues Order Permitting Self-Certification for Employees to Be Eligible for New York State Quarantine Leave, 05.14.20