New York Department of Labor Issues Guidance on Use of COVID-19 Sick Leave

On Jan. 20, 2021, the New York State Department of Labor issued a guidance which states that if an employer requires an employee to stay home for fear that the employee has been exposed to COVID-19, the employer MUST pay the employee for the days out until the employee can return to work or obtains an order of quarantine. During this limbo period, although the guidance does not specifically state as much, it appears that the employee would not be charged with use of employer-provided PTO or sick days, or use of NY paid COVID-19 sick pay. This appears contrary to an earlier interpretation by commentators that if an employee is precluded from coming to work but does not have an order of quarantine or cannot show that an order had been applied for, the employee’s sole remedy would be filing for unemployment insurance benefits.

The guidance also states that where an employee returns to work after having been quarantined pursuant to an order, and tests positive a second or third time, the employer must pay the employee the New York COVID-19 sick pay, so long as the employee provides a doctor’s certification of a positive test, even without an additional order. The same is true if an employee out of work on quarantine tests positive after having served the mandatory quarantine period. However, the guidance makes clear that an employer need not require an employee who has been quarantined to take a COVID-19 test at the end of the quarantine period prior to returning to work.