On January 20, 2021, approximately ten months after New York State enacted its COVID-19 Paid Sick Leave Law (the "COVID-19 Leave Law"), the New York Department of Labor (NYDOL) issued guidance regarding the COVID-19 Leave Law.
Enacted on March 18, 2020, the COVID-19 Leave Law entitles employees to job-protected sick leave (paid or unpaid, depending on employer size) when they are subject to an order of quarantine or isolation issued by an authorized governmental entity (a "COVID-19 Order").
Private employers are obligated to provide the following leave under the COVID-19 Leave Law:
| Number of Employees (As of January 1, 2020) | Amount of Sick Leave | Supplemental Benefits |
| 0-10 employees; net income of $1 million or less in the prior tax year | Unpaid leave for duration of the order |
Combined COVID-19 Paid Family Leave (PFL) and Disability Leave Benefits (DBL) for the duration of the COVID-19 Order |
| 0-10 employees; net income of more than $1 million in the prior tax year | 5 days of paid sick leave | Combined PFL and DBL for the duration of the COVID-19 Order |
| 11-99 employees | 5 days of paid sick leave | Combined PFL and DBL for the duration of the COVID-19 Order |
| 100 or more employees | 14 days of paid sick leave |
Public employers must provide 14 days of sick leave at the employee's regular rate of pay when an employee is covered by the COVID-19 Leave Law.
The January 20, 2021 guidance supplements prior guidance on the application of the COVID-19 Leave Law. All prior guidance remains in effect.
The new guidance clarifies employees' entitlement to COVID-19 sick leave.
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.
If an employee tests positive for COVID-19 following a period of mandatory quarantine or isolation, however, then the employee cannot report to work, is automatically deemed subject to a subsequent mandatory order of isolation from the Department of Health, and is entitled to sick leave under the COVID-19 Leave Law, even if the employee already received NY COVID-19 sick leave for the first period of mandatory quarantine or isolation. In order to receive sick leave for the second time, the employee is required to submit documentation of the positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer's insurance carrier, if applicable. The employee does not need to submit documentation of a positive result if the employee's employer gave the employee the test for COVID-19 that showed the positive result.
Additionally, if an employee is subject to an order of quarantine or isolation and continues to test positive for COVID-19 at the end of the quarantine or isolation period, then the employee cannot return to work, is automatically deemed subject to an additional mandatory order of isolation, and is entitled to COVID-19 sick leave for the second period of isolation. The guidance states that it is not recommended that employees be tested to discontinue isolation or quarantine. The employee is required to submit documentation of the subsequent positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer's insurance carrier, if applicable. The employee does not need to submit documentation of a positive result if the employee's employer gave the employee the test for COVID-19 that showed the positive result.
The new guidance also provides that 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 must 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, at which time the employee would then receive sick leave as required by the COVID-19 Leave Law, for the period of time the employee is subject to the order of quarantine or isolation. It remains unclear at this point whether this provision of the guidance exceeds the authority of the NYDOL, as the COVID-19 Leave Law itself does not provide for sick leave in the absence of a COVID-19 Order.
The guidance limits the number of times an employee can utilize COVID-19 sick leave to three orders of quarantine or isolation. In order to be eligible for sick leave on the second and third orders, the employee must have received a positive COVID-19 test in the circumstances described above.
Employers should ensure that they comply with the COVID-19 Leave Law and its guidance. Please contact Laura L. Spring, Esq. at CCBLaw for any questions regarding the COVID-19 Leave Law and how it may affect your organization.