Key Takeaways

• New York has issued additional guidance interpreting NY COVID-19 leave

• The guidance clarifies that employees may be entitled to state COVID-19 leave no more than three times

• Significant questions and inconsistencies with New York’s COVID-19 statute remain

Administering medical leaves has long been a challenging and complex process for employers. During the COVID-19 pandemic the intricacies of new state and federal COVID-19 leaves has left many employers playing a game of three-dimensional chess between federal, state, and local guidelines, where the rules change frequently with little to no warning.

New York COVID-19 leave, which we previously reported on, was enacted on March 18, 2020 in response to the COVID-19 pandemic. Beyond the text of the law, New York State launched a NY COVID-19 leave website that includes guidance, FAQs, forms, and fact sheets.

In short, NY COVID-19 leave requires employers to provide at least five unpaid sick days, five paid sick days, or 14 paid sick days (depending on the size of the employer) to employees when an employee is subject to a “mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity duly authorized to issued such order due to COVID-19.” One of the most pressing questions since the enactment of NY COVD-19 leave has been whether an employee is eligible for the leave only one time or if employers must provide NY COVID-19 leave if an employee is subject to multiple quarantine/isolation orders.

Additional guidance clarifies eligibility for multiple leaves

The New York State Department of Labor recently released additional guidance interpreting NY COVID-19 leave, which “supplement[s] prior guidance,” but makes clear that “all prior guidance remains in effect.” The guidance is dated January 20, 2021, but has no effective date. Presumably, the state expects employers to follow the guidance from January 20, 2021 and after. (Health care employers must follow additional guidance from the New York Department of Health (DOH), which we cover further on in this alert.)

The guidance includes four paragraphs of information, but the critical point is in Paragraph 4, which states that an employee may be entitled to NY COVID-19 leave up to three times. This is important new information, because unlike leaves under Families First Coronavirus Response Act (FFCRA)[1], which specifically limits leave to discrete amounts of time, the NY COVID-19 statute merely states that employees are entitled to a certain amount of leave when they are subject to a quarantine/isolation order, with no direction on continued eligibility after receiving the leave the first time. Notably, the guidance limits eligibility for NY COVID-19 leave for a second and third time to situations where the employee is subject to an order of isolation/quarantine specifically based on a positive COVID-19 test. In no circumstance will an employee be eligible for any more than three NY COVID-19 leaves.

Notably, the guidance ignores longstanding guidance from the Centers for Disease Control and Prevention (CDC), which states that individuals “appear to become susceptible to reinfection around 90 days after onset of infection,” “reinfection appears to be uncommon during the initial 90 days after symptom onset of the preceding infection,” and “for persons recovered from SARS-CoV-2 infection, a positive PCR without new symptoms during the 90 days after illness onset more likely represents persistent shedding of viral RNA than reinfection.” Instead, the guidance seemingly mandates NY COVID-19 leave to employees who recently tested positive for COVID-19, even though the CDC states that testing positive for a second time within 90 days likely means the person does not have COVID-19 again.

Leave amount, other questions remain

Despite the new guidance, there are still pressing questions about the practical application of NY COVID-19 leave that New York State has not yet answered. By way of example, the guidance seemingly assumes that the individuals subject to a second or third quarantine/isolation order used the entire amount of leave each time (unpaid days, five paid days, or 14 paid days) the first time they were subject to a quarantine/isolation order.

The state has not provided guidance as to how to handle situations where an employee is subject to a quarantine/isolation order for a period of time that is less than the mandated amount by NY COVID-19 leave law. For example, consider an employer with more than 100 employees who must provide at least 14 days of NY COVID-19 leave to an employee subject to a quarantine/isolation order. Further assume that in January 2021 an employee is subject to a quarantine/isolation order due to potential exposure to COVID-19 but is asymptomatic. Here, the employee needs to quarantine for only 10 days (and is provided with NY COVID-19 leave for those 10 days), pursuant to NY DOH guidance released on December 26, 2020, because the person is asymptomatic. The question becomes whether the employee is entitled to four days of additional NY COVID-19 leave in the future (to get up to 14 days) if the employee is subject to a second quarantine/isolation order. This is merely one example of the tension between the NY COVID-19 leave law and guidance, and the practical application COVID-19 leave.

Inconsistencies with NY COVID-19 statute may lead to legal challenges

The third paragraph of the guidance might be the most confusing of all. It states in relevant part that an employer must provide NY COVID-19 leave to an employee if and when the employer forbids the employee from coming to work due to potential COVID-19 exposure even if the employee is not otherwise subject to a government-issued quarantine/isolation order. This piece of the guidance is problematic for at least two reasons.

First, the black letter of the NY COVID-19 law specifically limits leave eligibility to situations where a person is subject to a government issued quarantine/isolation order. There is no support in the law for an interpretation that an employer’s mandate of isolation/quarantine triggers NY COVID-19 leave. Second, the circumstance presented in paragraph three of the guidance is precisely one of the scenarios that would trigger a government-issued order of quarantine/isolation. The NY COVID-19 leave website that was launched in spring 2020 has stated the entire time that an employee waiting to receive a government-issued quarantine/isolation order may temporarily rely on a note from their physician to qualify for NY COVID-19 leave. The website specifically states that one of the qualifying reasons for a government-issued quarantine/isolation order is that a physician must attest that the employee was exposed to someone that was COVID-19 positive.

In summary, the scenario described in paragraph three of the guidance fails to recognize that a person that is exposed to COVID-19 will be subjected to a government-issued quarantine/isolation order regardless of any actions taken by that person’s employer.

Due to the apparent inconsistencies between the guidance and the NY COVID-19 statute, it remains to be seen whether employers or citizens will challenge the guidance.

Health care employers: Department of Health guidance still applies

For those working in the health care industry, continue to refer to the DOH guidance issued on June 25, 2020, which also limits NY COVID-19 leave application to a maximum of three times, and only if the second and third time are related to a positive COVID-19 test.

Intersection of federal and NY COVID-19 leave

The E-PSLA and E-FMLEA, which are the federal COVID-19 leaves laws under the FFCRA, included a sunset date of December 31, 2020. Pursuant to the Consolidated Appropriations Act, signed by former President Trump on December 27, 2020, employers may voluntarily extend FFCRA leave throughout March 31, 2021.

Some New York employers, especially those in the private sector, decided to extend FFCRA, to at least the extent that FFCRA overlaps with NY COVID-19 leave[2], given that FFCRA allows private sector employers to obtain a tax credit for the FFCRA leave while NY COVID-19 leave has not such tax credit. Employers in the public sector have never been eligible for a tax credit under FFCRA, thus the tax credit incentive did not factor in to the decision on whether to extend FFCRA for those institutions. On the other hand, some employers have decided not to extend FFCRA leave beyond the overlapping scope of NY COVID-19 leave due to operational and staffing concerns.

Notably, the interaction of FFCRA and NY COVID-19 leave has been another area of confusion. The NY COVID-19 leave law states that it shall only apply to the degree it would provide “benefits in excess of the benefits” provided by a federal COVID-19 leave law (i.e., FFCRA). A recently added FAQ on the NYS COVID-19 leave website seems to clarify that this provision covers situations where both FFCRA and NY COVID-19 are triggered, but the amount of money the employee would receive under NY COVID-19 leave is in excess of the monetary caps imposed by FFCRA. In that circumstance, the employee receives the FFCRA leave benefit as well as the difference between the FFCRA leave benefit and the NY COVID-19 leave benefit.

It is also worth noting that the NYS COVID-19 leave website recently added the following FAQ:

Question: I used benefits under the federal Families First Coronavirus Response Act (FFCRA) in 2020. Am I able to use NYS COVID-19 Quarantine Leave benefits in 2021?

Answer: Mandatory benefits under the FFCRA expired on December 31, 2020. If you are subject to an order of mandatory or precautionary quarantine or isolation in 2021, you may be eligible for NYS COVID-19 Quarantine Leave benefits, even if you previously used benefits under the FFCRA in 2020.

President Biden’s agenda

President Biden was inaugurated on January 20, 2021, and has an ambitious agenda to combat COVID-19—reportedly including resurrecting and expanding FFCRA leave. Accordingly, employers that have not voluntarily extended FFCRA through March 31, 2021 may be subject to it again if Congress passes new legislation.

Employee leave questions still require fact-specific consideration

One thing has remained true throughout this pandemic: Employee leave questions are unique, fact-specific, and ripe for misapplication without careful consideration. Goldberg Segalla has significant experience counseling employers on COVID-19 leave application. Many of our employment attorneys previously worked as in-house counsel overseeing Human Resources departments or worked in the Human Resources department itself, administrating medical leaves. If you or your team have any questions about medical leaves, the role of COVID-19 vaccinations in the workplace, or related issues, please contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of our Employment and Labor practice

[1] This includes the Emergency Paid Sick Leave Act (E-PSLA) and Emergency Family Medical Leave Expansion Act (E-FMLEA).

[2] FFCRA is broader in scope and covers more circumstances than NY COVID-19 leave.