In March 2020, the State of New York enacted legislation (Senate Bill 8091) that provides paid or unpaid leave to employees subject to a quarantine or isolation order as a result of COVID-19. On February 2021, the state provided situational guidance for employees subject to multiple quarantine or isolation orders, for when an employee tests positive following their quarantine, and for when an employer mandates that an employee stay home due to potential exposure.
Background:
Senate Bill 8091 requires New York employers to provide leave to employees who are subject to a quarantine or isolation order as follows:
Impacted Employers:
|
Employer Size
|
Employer Requirements
|
|
10 or fewer employeeswith a net income less than one million dollars*
|
Provide employees with unpaid leave and job protection for the duration of the quarantine order and guarantee access to paid family leave and disability benefits (short-term disability), capped at $2,884.62 per week.
|
|
11-99 employees, or employers with 10 or fewer employees and a net income greater than one million dollars*
|
Provide at least five days of paid quarantine leave and job protection. After this leave is exhausted, the employee may apply for paid family leave and disability benefits, capped at $2,884.62 per week, for the duration of the quarantine order.
|
|
100 or More Employees
|
Provide employees with up to 14 days of paid quarantine leave and guarantee job protection for the duration of the quarantine order.
|
* Earned in the previous tax year.
Update February 2021:
The New York Department of Labor provided the following situational guidance:
Situation 1:
An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff. However, an employee who subsequently receives a positive COVID-19 test result must not report to work. In such cases, the employee will be subject to a mandatory isolation order from the New York Department of Health (DOH) and is entitled to quarantine leave, whether or not the employee already has received such leave for the first period of quarantine or isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that they tested positive for COVID-19, unless the positive result came from an employer-provided test.
Situation 2:
An employee who is subject to a quarantine or isolation order, but continues to test positive for COVID-19 at the end of their quarantine or isolation period must not report to work (though it's not recommended that an employee be tested in order to end isolation or quarantine). In such cases, the employee will be subject to a second mandatory isolation order from the DOH and is entitled to quarantine leave for the second period of isolation. The employee must submit documentation from a licensed medical provider or testing facility attesting that they tested positive for COVID-19 after completing the initial period of isolation, unless the positive result came from an employer-provided test.
Situation 3:
If an employer mandates that an employee who is not otherwise subject to a quarantine or isolation order to remain out of work due to potential exposure to COVID-19, the employer must continue to pay the employee at their regular rate of pay until the employer permits the employee to return to work or the employee becomes subject to a mandatory quarantine or isolation order. At that time, the employee must receive quarantine leave for the period of time the employee is subject to such an order.
Additional Information:
In no case does an employee qualify for quarantine leave for more than three orders of quarantine or isolation, and the second and third orders of quarantine or isolation must be based on a positive COVID-19 test. For more information, visit New York State's Department of Health and paid sick leave websites.
Job Protections:
Employees who return to work after a protected leave must be restored to the same pay, position of employment, and other terms and conditions of employment they had before taking their leave.
Employee Exemptions:
Senate Bill 8091 does not apply to quarantined or isolated employees who have returned to the U.S. after traveling to a country categorized as a level two or three by the Centers for Disease Control and Prevention (CDC) for non-work related reasons. For this exception to apply, the employee must have been made aware of this exception and of the CDC's warning.
Note: These employees are still eligible to use other accrued leave provided to them by their employer, after which the employee must receive unpaid sick leave until the end of any required or preventative order of quarantine or isolation.
Compliance Recommendations:
Employers in New York should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 8091 and subsequent guidance. Please contact your dedicated service professional with any questions.