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NY DOL’s January 2021 COVID-19 Sick Leave Guidance Rescinded

The New York Department of Labor’s January 2021 “Guidance on Use of COVID-19 Paid Sick Leave” has been officially rescinded. The rescission results in some big changes for employers.


The now rescinded guidance limited employees to up to three uses of COVID-19 paid sick leave (with the second and third use available only for an employee’s own positive test). That limitation is now withdrawn. The DOL’s current position is that there is no limit on the number of times an employee can receive COVID-19 sick leave. The DOL is currently considering the release of additional guidance to clarify this issue.


The rescinded guidance required that an employer pay an employee at their regular rate of pay in situations where the employer required the employee to stay home, despite the lack of any official quarantine or isolation status. This situation would arise if an employee had symptoms or reported exposure, but had no positive test or doctor’s note, and the employer decided that it was safer for the employee to stay out of work. The rescission of the guidance means that an employer no longer needs to make the choice between allowing that employee to work with symptoms or pay the employee to stay home without working. Now, an employer’s obligation to provide COVID paid sick leave only arises upon that employee’s self-affirmation that the employee is in quarantine or isolation.


Keep in mind that in January 2022, the DOL announced a new website that explained NY’s approach to isolation and quarantine. On that site, NY provided forms for employees to self-affirm a positive COVID test or close contact with a positive individual which would render the employee eligible for COVID paid sick leave. This eliminated the need for an employee to confirm such information with a doctor’s note or isolation order from a public health official or government entity to be eligible to receive their second and third entitlements to COVID-19 paid sick leave.


This is an evolving situation, and the foregoing reflects the current understanding of the DOL’s position. It is likely that additional guidance will be issued in the future. We will continue to update our blog with any news or changes.


If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Alina Nadir, the author of this piece, here, or at (585) 258-2805.


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