Wednesday, February 10, 2021
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
Part VII of our “Paid Leave and Coronavirus” series, the New York COVID-19 Paid Leave Law provides for job-protected employer funded paid and unpaid sick leave,[1] as well as an expansion of the state’s paid family leave (“PFL”) and statutory disability benefits, to certain employees who are “subject to mandatory or precautionary orders of quarantine or isolation” related to COVID-19. Unlike most other state and local COVID-19 emergency or supplemental paid sick leave mandates in the United States,[2] the Law does not have a specified sunset date or criteria. The specific amount and type of COVID-19 leave available to employees under the Law is as follows:
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On January 20, 2021, the New York State Department of Labor (“NY DOL”) issued another round of guidance (“Guidance”) on the use of COVID-19 sick leave under the New York State COVID-19 Sick Leave Law (“Law”). Supplementing prior state guidance,[1] this Guidance appears to actually expand the Law by increasing the availability of paid leave. For example, the Guidance now obligates an employer to pay an employee who is required to remain out of the workplace
by the employer due to actual or potential exposure to the virus. Under the Law, however, an employee is entitled to paid leave only if he or she is subject to a mandatory or precautionary order of quarantine or isolation (“QO”).
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After more than ten (10) months since going into effect, on January 20, 2021, the New York Department of Labor (“NYDOL”) issued new guidance (the “Guidance”) regarding the New York COVID-19 Sick Leave Law (the “Law”). As we initially reported, depending upon employer size and net income, the Law requires New York employers to provide job-protected sick leave (otherwise known as quarantine leave) to employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.
Based upon the statutory language of the Law and prior guidance, the Law was previously interpreted to impose a maximum benefit of either five (5) or fourteen (14) days of paid leave, or only unpaid job-protected leave, depending on the size and net income of the employer. According to the Guidance, however, employees are now entitled to additional leave under the following circumstances:
Unpaid leave for duration of the order
Combined COVID-19 Paid Family Leave (PFL) and Disability Leave Benefits (DBL) for the duration of the order
0-10 employees; net income of more than $1 million in the prior tax year
5 days of paid sick leave
Combined PFL and DBL for the duration of the order
11-99 employees
Combined PFL and DBL for the duration of the order
100+ employees
Public employers must also provide 14 days of sick leave at the employee’s regular rate of pay when an employee is covered by the NY COVID-19 sick leave law.
The Jan. 20, 2021 guidance states that employees are entitled to COVID-19 sick leave under the following circumstances: