New York Issues Guidance Concerning COVID-19 Sick Leave

Our earlier summary of the law, including a detailed explanation of the obligations imposed upon employers, is available here. The new guidance offers several critical clarifications concerning the state’s COVID-19 sick leave.

Leave Eligibility Clarification

To be eligible for COVID-19 leave, the individual or their dependent minor must receive either a mandatory or precautionary quarantine order. The order must be issued by a government entity authorized to issue a quarantine order, such as New York, the Department of Health, or a local board of health. Alternatively, an employee is entitled to COVID-19 leave if they reside within a building or complex that receives a quarantine order. Governor Cuomo’s statewide PAUSE order does not qualify.

The guidance does not address an employer’s obligation if the individual is unable to timely secure an order from an authorized governmental entity. By contrast, under such circumstances, the guidance makes clear that an application for paid family leave benefits may be temporarily supported by a private physician’s order. Presently, it thus does not appear that employers are required to accept a private physician’s order in support of COVID-19 leave. If an employee offers a private physician’s order in support of a request for COVID-19 leave, we encourage employers to check with counsel before rejecting such a request.

It is clear, however, that an individual who chooses to self-quarantine is not entitled to COVID-19 leave. An individual is also not entitled to COVID-19 leave if they are both asymptomatic and physically able to work through remote access or similar means.

Benefits Clarification

The guidance clarifies that benefits are calculated in calendar days. Benefits are not calculated based on business days nor the number of days taken by the employee. To provide a concrete example, an employee that would have worked 10 days during a 14-day COVID-19 leave is entitled to be paid for the 10 days of work they miss—the employee is not entitled to continue the leave until they are paid for 14 days of work. These benefits should be paid in accordance with normal payroll procedures for the 14 calendar days covered by the leave.

The guidance reiterates that New York’s COVID-19 leave cannot replace other sick leave benefits to which the employee is entitled, except for federal COVID-19 leave. This is a significant departure from the federal leave provided by the Families First Coronavirus Response Act (FFCRA), which may run concurrently with other sick leave. Notably, if an employer runs FFCRA leave concurrently with other benefits, then the employer may not run New York’s COVID-19 leave concurrently with FFCRA leave. Put differently, New York’s prohibition on running COVID-19 leave concurrently with other benefits cannot be bypassed by also running FFCRA leave concurrently.

Additional Leave Rights

Employees may be entitled to leave or benefits under several other New York State and City laws, regardless of whether they receive a quarantine order.  For example, New York City’s Department of Consumer Affairs issued guidance that, in addition to quarantine orders, employees may use New York City Paid Sick Leave if they show symptoms of COVID-19, get tested for flu or COVID-19, or self-isolate for preventative purposes. Accordingly, employers should ensure they are in compliance with all applicable New York State and City laws before denying a request for leave related to COVID-19.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Matthew J. McDonald is a partner in the Litigation Department at Klehr Harrison.