Employers May Have to Pay New York COVID-19 Sick Leave to Eligible Employees Up to Three Times
On January 20, 2021, the New York State Department of Labor (DOL) published guidance from Governor Cuomo’s counsel office on the use of New York State Emergency Paid Sick Leave (NEPSL).
As you may know, NEPSL provides job protection and financial compensation to New Yorkers who have been quarantined for COVID-19. The financial compensation includes enhanced Paid Family Leave and Disability benefits as well as a certain number of required paid sick days depending on employer size:
Prior DOL guidance suggested that these sick days were paid only once, even if the employee was quarantined multiple times. Under the new guidance, this is no longer the case. Instead, an employee subject to a mandatory order of isolation is entitled to paid sick leave “whether or not the employee already received sick leave as required by law for the first period of quarantine or isolation” if he/she gets a subsequent positive test. An employee cannot qualify for sick leave under NEPSL for more than three orders of quarantine or isolation. The guidance also discusses that an employee who returns to work after a period of quarantine or isolation does not need to be tested before returning to work and, indeed, recommends not getting such a test. According to this guidance, an employee could potentially be paid for five or 14 days three times by employers, so long as the second and third quarantine were based on a positive COVID-19 test. The guidance is arguably retroactive to March 2020.
Additionally, if an employer requires an employee to remain out of work due to exposure or potential exposure to COVID-19, and the employee is not subject to an order of quarantine or isolation, that employer is responsible for paying the employee at his/her regular rate of pay until it permits the employee to return or the employee receives such an order. Depending on the circumstances, this pay may not be part of the required NEPSL five or 14 sick days but is still additional to any paid leave already provided to the employer. The employer must pay the employee whether or not the exposure/potential exposure was a result of interactions in the workplace or outside of work (such as the employee attending a party).
No tax credits are available to employers under NEPSL for paying these benefits. However, employers who are voluntarily providing the federal Families First Coronavirus Response Act (FFCRA) may still receive tax credits through March 31, 2021 up to the maximum sick days available under FFCRA.
If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here or at (585) 258-2814.