On January 20, 2021, approximately 10 months after the state of New York enacted the NY COVID-19 Paid Sick Leave Law, the New York Department of Labor (NY DOL) issued new guidance that seeks to clarify the benefits available to all employees (except those in the healthcare industry, who were issued separate but similar guidance in June 2020) under the NY COVID-19 Paid Sick Leave Law (the Law).

As previously discussed, the Law requires employers to provide up to 14 days of paid sick leave (depending on the size of the employer, net income of the employer, and whether it is a private or public employer) for employees subject to a mandatory or precautionary order of quarantine or isolation issued by an authorized governmental entity (a “COVID-19 Order”). The state’s new guidance purports to “supplement” earlier state guidance and addresses the following questions:

1. May an employee who returns to work following a period of quarantine or isolation, who subsequently tests positive for COVID-19, access paid sick benefits under the Law?

Yes. The employee is automatically “deemed” to be subject to a mandatory order of isolation and is entitled, once again, to sick leave under the Law for this “second” period of isolation, and a subsequent “third” period of isolation. The employee must, however, submit documentation from a medical provider or testing facility confirming the positive COVID-19 results.

2. May an employee who continues to test positive for COVID-19 after the conclusion of a period of quarantine or isolation continue to access paid sick benefits under the Law?

Yes. If after the conclusion of the period of quarantine or isolation an employee continues to test positive for COVID-19, the employee shall be automatically “deemed” to be subject to a second COVID-19 Order and is entitled, once again, to sick leave under the Law for this “second” period of isolation, and a subsequent “third” period of isolation. The employee must, however, submit documentation from a medical provider or testing facility confirming the positive COVID-19 results.

3. May an employee not subject to a COVID-19 Order who is required to remain out of work due to exposure or potential exposure to COVID-19, irrespective of whether the exposure occurred at the workplace, access paid sick benefits under the NY COVID-19 Paid Sick Leave Law?

Yes. If an employer “mandates” an employee, who is not otherwise subject to a COVID-19 Order, to remain out of work due to such exposure or potential exposure to COVID-19, the NY DOL is requiring employers to pay the employee at the employee’s regular rate of pay until (a) the employer permits the employee to return to work, or (b) the employee becomes subject to a COVID-19 Order. If the employee becomes subject to such an Order, the NY DOL is requiring employers then to provide the employee with sick leave under the Law. It is unclear whether the paid gap period between the start of the employer-mandated quarantine, and either the return to work or receipt of a COVID-19 Order, refers to the New York State Paid Sick Leave Law (or local equivalent), which allows employees to utilize sick time beginning January 1, 2021, or leave that is in addition to any employer-provided sick leave benefits.

4. Is there a limit on how many times an employee can access paid sick benefits under the NY COVID-19 Paid Sick Leave Law?

Under the guidance, employees can access paid sick benefits under the Law for no more than three COVID-19 Orders. The second and third COVID-19 Orders must be based on a positive COVID-19 test in accordance with the guidance.

Implications for Employers

Before the guidance, there was ambiguity about whether an employee could receive multiple periods of sick leave under the Law. According to the guidance, it appears that the NY DOL has taken the policy position that employees may qualify for paid leave under the Law for up to three COVID-19 Orders.

The guidance may be subject to challenge, however, based on the plausible argument that it is not authorized by underlying legislation and therefore exceeds the power of the NY DOL. The guidance requires employers to pay employees who have been exposed or potentially exposed to COVID-19 to remain out of work in the absence of a COVID-19 Order. The statutory text of the Law does not contain any provision requiring employers to pay employees for this period between the employer’s direction to remain out of work (due, of course, to state safety mandates) and either the permission to return to work or the employee’s becoming subject to a COVID-19 Order. Accordingly, it is unclear whether the NY DOL will seek to enforce this aspect of the Law, or whether it is justified as an implied invocation of the New York State Sick Leave Law.

All New York employers are encouraged to consult counsel regarding employer obligations to comply with the NY DOL’s guidance as well as any formal regulations issued concerning COVID-19 measures in the workplace by applicable state agencies.  Rapidly changing New York employment laws responding to the COVID-19 pandemic require continual monitoring and reassessment of employer compliance.