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January 29, 2021

Stroock Client Alert

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

On January 20, 2021, the New York State Department of Labor (“NYSDOL”) issued supplemental guidelines regarding employee COVID-19 sick leave.

Under this new guidance, an employee who tests positive for COVID-19, after previously completing a period of quarantine or isolation, is deemed to be subject to a mandatory order of isolation from the Department of Health and shall be entitled to sick leave as required by New York’s COVID-19 sick leave law, regardless of whether or not the employee already received sick leave as required by law for his or her original period of quarantine or isolation.  Employees who qualify for this additional sick leave must submit documentation of a positive COVID-19 test from a licensed medical provider or testing facility.  However, employees need not submit this documentation if the employee’s employer provided the COVID-19 test.

This additional sick leave applies where an employee either (i) returns to work after a period of quarantine or isolation and then tests positive for COVID-19 or (ii) continues to test positive for COVID-19 after the initial period of quarantine or isolation.

If an employer mandates that an employee who is not otherwise subject to a mandatory or precautionary order of quarantine or isolation remain out of work due to exposure or potential exposure to COVID-19, regardless of whether such exposure or potential exposure was in the workplace, the employer shall continue to pay the employee at the employee’s regular rate of pay until such time as the employer permits the employee to return to work or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation.

Employees may qualify for sick leave under New York’s COVID-19 sick law up to three times.

How much job-protected sick leave an employee is entitled to for each quarantine or isolation period, and whether such leave is paid, depends upon an employer’s size and remains unaffected by the NYSDOL’s supplemental guidance:

• Employers with 1-10 employees and net income of $1 million or less are not required to provide new paid sick days and employee may use Paid Family Leave and disability benefits.

• Employers with 1-10 employees and net income over $1 million must provide at least 5 paid sick days.  During the unpaid sick leave, the employee may use Paid Family Leave and disability benefits.

• Employers with 11-99 employees must provide at least 5 paid sick days.  During the unpaid sick leave, the employee may use Paid Family Leave and disability benefits.

• Employers with 100 or more employees must provide at least 14 paid sick days.

• Public employers of any size must provide at least 14 paid sick days.

With respect to the 14 days of paid sick leave, an employer is required to pay the employee what he or she would otherwise have received in the 14-calendar-day period (in contrast to 14 business days), paid at the employee’s regular rate. As a result, if an employee would have worked 10 days during that period, then such employee is eligible for 10 days of paid sick leave.

Before the NYSDOL issued this supplemental guidance, it was believed that this leave was limited to instances where employees were subject to an order of quarantine or isolation due to COVID-19.  It also was unclear whether or not COVID-19 sick leave could be taken more than one time. 

In any event, New York employers should review their COVID-19 policies and practices in light of this NYSDOL guidance.

______________________________

For More Information: 

Howard Lavin

Elizabeth DiMichele 

GraceAnn Caramico 

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.

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