By Tracey I. Levy

Employers in New York State may have to pay employees at full salary for more than six weeks of COVID-19 leave (in addition to all other paid leave benefits offered by the employer or mandated by law) under new guidance issued by the New York State Department of Labor (“NYS DOL”) on January 20, 2021.  This is precisely the position that we flagged as a troubling open issue in our prior blog posting, Extension of FFCRA Credit Helps NYS Employers.

The NYS DOL guidance provides that if an employee who returns to work following a period of quarantine or isolation subsequently tests positive for COVID-19, the employee must submit proof of the positive test result and is not allowed to come to work.  Rather, the employee is deemed to be subject to a new mandatory order of isolation and is entitled to New York State’s paid COVID-19 leave law, irrespective of whether the employee already received a full two weeks of paid COVID-19 leave for the prior quarantine.  Similarly, if an employee has been out on COVID-19 leave due to a quarantine or isolation order and continues to test positive for COVID-19 after the end of the quarantine or isolation period, the employee cannot come to work.  Instead, upon proof of the positive test result, the employee is entitled to an additional period of COVID-19 paid leave.

In addition, if an employer mandates that an employee who is not otherwise subject to a quarantine or isolation order remain out of work due to actual or potential exposure to COVID-19 (from any source), then the employer has to continue to pay the employee’s regular salary for so long as the employer requires the employee to stay away from work or until such time as the employee actually becomes subject to a mandatory or precautionary order of quarantine or isolation.  If and when the employee is subject to a quarantine/isolation order, the clock will then begin running on the mandatory New York COVID-19 sick leave period, but the period of paid leave preceding issuance of the order will not count as part of the two-week COVID-19-leave period.

The one concession to employers offered by the new guidance is that they need not endure more than three rounds of paying COVID-19 sick leave for a quarantined employee.  Also, while the first COVID-19 paid sick leave period may arise based on the employee being subject to a COVID-19-related quarantine or isolation order for any reason, the second and third rounds must be predicated on the employee personally testing positive for COVID-19.

Employers have limited options under this new guidance.  Some attorneys have suggested that the guidance (which does not have the same force as a regulation) is subject to challenge on the grounds that it exceeds the scope of the law.  Short of commencing litigation, employers can bear the cost of the more expansively-interpreted law and look to the FFCRA tax credit to offset the costs of each employee’s first round of New York State COVID-19 paid leave.  While the tax credit is set to expire March 31, 2021, it may be extended as part of the latest federal COVID-19 relief legislation.  Notably, New York State’s COVID-19 leave is not available if an employee is able to work remotely, so employers should maximize that opportunity whenever an employee is quarantined but either has not tested positive or is experiencing few symptoms and feels well enough to work.

One other option for employers that are really struggling financially at this time may be to suspend or temporarily reduce vacation or other paid time off benefits for the duration of the pandemic so as to offset the employers’ salary continuation obligations under the COVID-19 leave law.  In most non-union situations, New York State employers are able to modify their paid time off policies at any time, provided employees continue to receive the leave time to which they are entitled by law.  Vacation and extended PTO days fall outside those statutory requirements, and employers generally have flexibility to modify those policies.  It is advisable, though, to consider the  resulting impact to employee morale, and to consult legal counsel before making any such modifications in this context.