The New York State Department of Labor has issued new guidance regarding the use of COVID-19 sick leave, aimed at clarifying the circumstances when employees are entitled to it and outlining employers’ obligations.
The New York COVID-19 Sick Leave Law, enacted on March 18, 2020, authorizes sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. Complying with the provisions of the New York COVID-19 Sick Leave Law was not generally a focus for New York credit unions until Jan. 1, 2021. Prior to that, the Families First Coronavirus Response Act provided more generous COVID-19 paid leave benefits to employees under federal law.
However, the FFCRA expired on Dec. 31, 2020, which brought the New York law back into focus for credit unions. Credit unions can continue to offer the paid leave benefits under the FFCRA voluntarily, but if they choose not to, the New York COVID-19 Sick Leave law must be followed.
The New York COVID-19 Sick Leave Law provides paid and unpaid sick leave with access to expanded paid family leave and temporary disability, depending on an employer’s size. All employees, regardless of the size of their employer, are entitled to job protection upon return from leave.
The Jan. 20, 2021 guidance is summarized as follows:
- An employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work. However, an employee who subsequently receives a positive diagnostic test result for COVID- 19 must not report to work. The employee shall be 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, whether or not the employee already has received sick leave as required by the law for the first period of quarantine or isolation. However, the employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19.
- An employee who is subject to an order of quarantine or isolation but continues to test positive for COVID-19 after the end of such quarantine or isolation period must not report to work. Please note that an employee is not recommended to be tested to discontinue isolation or quarantine. The employee shall be deemed to be subject to a second 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 for the second period of isolation. However, the employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has received a positive diagnostic test for COVID-19 after completing the initial period of isolation.
The latest guidance also imposes a limit on the number of times an employee can utilize COVID-19 sick leave and provides that an employee cannot qualify for this sick leave for more than three orders of quarantine or isolation.
Perhaps the most significant part of the newly released guidance is that it appears to require employers to provide employees with paid leave when the employer requires an employee to remain out of work for precautionary reasons due to potential exposure to COVID-19 (regardless of where the exposure occurred). In such cases, the guidance states that the employer must pay the employee at the employee’s regular rate of pay until the employer allows the employee to return to the workplace, or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which time the employee would receive New York COVID-19 sick leave for the duration of the order.
It is unclear whether this provision in the latest guidance is valid, because it appears to provide more leave than what is authorized by the COVID-19 sick leave legislation. Credit unions should consider this guidance carefully for the time being with the hope that further clarification is provided by the New York Department of Labor.
Credit unions with additional questions on this guidance may contact Chris Pajak, the New York Credit Union Association’s HR consultant and vice president of member engagement at christopher.pajak@nycua.org or (800) 342-9835 ext. 8188.