On January 20, 2021, the New York State Department of Labor issued new “guidance” regarding COVID-19 sick leave. The two-page document signed by Commissioner of Labor Roberta Reardon purports to relate to the State’s March 2020 law regarding leave for employees subject to a quarantine or isolation order due to COVID-19. However, the DOL pronouncements seem to create new obligations not found in the law.

NYS COVID-19 Quarantine Leave Law

At the beginning of the coronavirus crisis in March 2020, both New York State and the federal government enacted employee leave laws specific to COVID-19. The federal law expired December 31, 2020 (though employers who continue to allow paid leave as the law provided remain eligible for tax credits). The New York law had no expiration date.

The New York COVID-19 leave law was comparatively limited, essentially only creating an employer-paid leave entitlement when employees were placed under a precautionary or mandatory order of quarantine or isolation due to COVID-19. The law is clear that the order must be from a government health authority, not a private medical provider.

The amount of leave required under the New York COVID-19 sick leave law depends on the employer’s size. The smallest private employers (less than 10 employees and net income under $1 million) do not have to provide paid leave. Mid-sized companies (up to 99 employees) must pay for 5 days of leave due to COVID-19 quarantine or isolation. Large private employers (100+ employees) and all public (governmental) employers must provide up to 14 days of paid leave in this situation.

The law also modified the NYS disability and paid family leave programs to supplement the portion of such leaves that employers did not have to pay for directly.

Click here for more on the New York State COVID-19 sick leave law.

Earlier DOL Guidance

In late March 2020, the NYS DOL issued guidance on the new leave law through a State website. This guidance addressed questions such as how to calculate the rate of pay. It also provided new forms for employees to request paid family leave or liability benefits due to a COVID-19 quarantine.

Click here for more on the original New York State COVID-19 sick leave guidance.

New COVID-19 Sick Leave Guidance

The January 20, 2021 guidance from the NYS Commissioner of Labor is initially notable for its format. Rather than a proposed regulatory document or even website guidance as used back in March, these new COVID-19 sick leave parameters appear in a plain .pdf file bearing a DOL logo heading and ending with Commissioner Reardon’s signature and a New York, New York dateline. Overall, this more closely resembles the approach used by the New York Department of Health to put out temporary standards for COVID-19 safety under Governor Cuomo’s numerous executive orders during the pandemic. However, no executive order has granted the DOL this authority.

The document begins by expressly referencing the March 18, 2020 “legislation authorizing sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.” That legislation grants the Commissioner of Labor “authority to adopt regulations, including emergency regulations, and issue guidance to effectuate any of the” law’s provisions. But, again, this guidance is not in the form of regulations. Even emergency regulations would require more formalities. The law continues that “Employers shall comply with regulations promulgated by the commissioner of labor for this purpose which may include, but is not limited to, standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”

Does the same force apply to a generic “guidance” document? That’s a fair question that could reasonably be answered, “no,” especially since the guidance seems to deviate meaningfully from the terms of the law itself.

Valid or not, the new guidance notes that “All prior guidance remains in effect”. It then includes four numbered paragraphs that seem to address issues that likely have been asked of the DOL about the law.

Return to Work

The DOL confirms that following quarantine or isolation, employees don’t have to be tested for COVID-19 before returning to work. (There is an exception for nursing home staff.) This conclusion seems consistent with the law.

But the guidance goes further to indicate that if an employee does subsequently receive a positive test result, they may not return to work. In that scenario, the employee must continue to isolate. Moreover, the DOL suggests that such an employee will automatically be deemed to be subject to a mandatory order of isolation from the NYS Department of Health and entitled to leave under the NYS COVID-19 sick leave law. This idea of an automatic isolation order appears contrary to the law, which plainly requires the employee to obtain an order from a health department to qualify for leave. The guidance says that, in this situation, the employee only needs to submit documentation from a medical provider or testing facility confirming the positive test result–again, inconsistent with the law.

New Paid Leave Scenario

The DOL also appears to have created an entirely new COVID-19 paid leave requirement not codified in the March 18, 2020 legislation. The guidance document indicates that if an employer requires an employee who is not subject to a quarantine or isolation order to stay home due to exposure or potential exposure to COVID-19, then the employer must pay the employee for all time missed until allowing the employee to return to work or until the employee becomes subject to a quarantine or isolation order. Notably, the DOL doesn’t establish any further exceptions to this new obligation. For example, it doesn’t relieve the employer of the obligation to pay even where an employee recklessly exposed himself to COVID-19.

There is no reasonable way to read this paid leave obligation into the March COVID-19 sick leave law. Nonetheless, employers must either adhere to the DOL’s position or risk having to contest it legally.

Three Strikes and You’re Out

When the New York COVID-19 sick leave law took effect in March 2020, no one anticipated the disease to remain prevalent for as long as it has. There was a general belief that anyone could only become infected once and that a 14-day quarantine or isolation period would eliminate any transmission risk. The way things have worked out, it has unexpectedly become clear that some people may run into multiple quarantines or isolations due to COVID-19. So, how much paid leave do they get?

According to the DOL, employees can qualify for COVID-19 sick leave up to 3 times. And the second and third times only count if based on a positive COVID-19 test.

Right, wrong, or indifferent, the law itself doesn’t say anything about three leave periods or limit any scenario to a positive test. Does the Commissioner of Labor have this much authority to re-write the law? Probably not, but again, who wants to take that risk?

Between a Rock and Hard Place

New York employers are already facing tremendous difficulty applying the array of leave requirements that potentially apply to employees dealing with COVID-19 issues. On the one hand, further guidance from the DOL arguably provides answers to questions companies are facing. On the other hand, it’s highly questionable whether the DOL has the authority to make these pronouncements. Both following and ignoring this latest guidance could create legal problems for employers. Not all of these “interpretations” are in the employees’ favor. So, even doing the right thing according to the DOL could upset an employee who might have a reasonable claim that they were denied rights under the NYS COVID-19 sick leave law.

Perhaps the DOL will clarify its authority, or the State will otherwise confirm the validity of this guidance. For now, however, employers should consult experienced New York employment counsel if confronted by any of the issues addressed by this DOL document.

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