by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
February 09, 2021
Here’s a riddle for you:What do Super Bowl LV and COVID have in common? I’m not sure – though if you’re a Chiefs fan I suppose both can seem like an unthinkable, undeserved cosmic spanking.
Ah yes, the Super Bowl in COVID times: long gone are the raucous parties with lots of queso, Buffalo wings, yelling, and the adult beverages of your choice. They were replaced in 2021 with quiet gatherings of “safe” family or friend pods, maybe a beer or two, but it wasn’t quite the same, was it? Maybe next year.
Meanwhile, here at Matrix we continue to keep an eye on all things COVID with regard to leave of absence. So here we go . . .
New York Paid Sick Leave. The state of New York was an early and strong adopter of mandatory paid sick leave for employees for COVID-related quarantines. (Drives me nuts that they labeled it “sick” leave when it is only for mandatory quarantines!) Most New York employers must provide paid time off when the employee or the employee’s child is subject to a COVID-19-related mandatory or precautionary order of quarantine or isolation issued by the state or an appropriate governmental agency. The amount of paid sick leave required – 0, 5, or 14 calendar days – is determined by the employer’s size and net annual income. We reported on the New York law in detail here if you want a refresher.
The Commissioner for New York’s Department of Labor recently issued a new Guidance on Use of COVID-19 Sick Leave. The Guidance specifically addresses the use of such leave when an employee still tests positive for COVID-19 after an initial period of mandatory quarantine or isolation. The Guidance supplements prior guidance, all of which remains in effect. You can check out the state’s COVID-19 website New Paid Leave for COVID-19 | Paid Family Leave (ny.gov) for more info. Here are the key points of the new Guidance:
Consequences of a positive test after mandatory quarantine or isolation. According to the Guidance, an employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff. But if the employee does get a test – either after returning to work or at the end of a period quarantine prior to returning to work – and that test is positive, then the employee cannot continue working or return to work yet. In this case the employee is deemed to be subject to a required mandatory order of isolation (apparently, a de facto continuation of the order that took the employee off work in the first place) and is entitled to paid sick leave under the New York law even if he or she received paid leave during the first period of quarantine/isolation.
To be entitled to such paid sick leave during the 2nd (or a 3rd) period of quarantine the employee must provide documentation from a medical provider or testing facility verifying that the employee tested positive (unless the employer gave the test). An employee may qualify for paid sick leave for a maximum of 3 periods of quarantine or isolation – the initial period due to the original order followed by up to 2 more periods supported by a verified positive test.
Employer mandate to stay off work. If an employee who is not subject to a qualifying order of quarantine or isolation is directed by the employer to stay off work due to actual or potential exposure to COVID-19, the employer must pay the employee his/her full pay until either the employer allows the employee to return to work or the employee becomes subject to such an order.
Although the Guidance does not specify, it would appear that this paid time period does not count toward the employer’s obligation to provide quarantine pay under the New York law. This makes a certain amount of sense since that obligation only kicks in once the employee is subject to an official order.
If the employee does become subject to a qualifying order after being excluded from the workplace by the employer, the employee is then entitled to paid sick leave pursuant to the New York law.
Matrix observations. There are still unanswered questions. The Guidance was issue on January 20, 2021, is not an actual amendment of the law, and does not specify an effective date. As a result, it is unclear whether it is applicable to leave situations since the law went into effect on March 18, 2020, but prior to the Guidance. Entitling employees to up to 3 periods of quarantine pay is certainly a new interpretation.
In addition, the Guidance does not specify whether the multiple periods of pay during quarantine must be successive with no break in between. This may not be required, as the Guidance states:
An employee who returns to work following a period of mandatory quarantine or isolation . . . who subsequently receives a positive diagnostic test result for COVID- 19 . . . shall be deemed to be subject to a mandatory order of isolation.
However, the tenor of the Guidance does seem to imply that the multiple periods of paid quarantine must be related to a single exposure because the paid leave entitlement for the 2nd and 3rd periods rests on a positive test that acts as an extension, so to speak, of the actual order.
Matrix can help! Just keep watching this space. Just like Tom Brady, COVID is still a “thing” and we will keep you up to date on major leave of absence and accommodation developments as they happen. For now, please wear your mask and get that vaccination when you can!