Updated February 2022 – The New York State Department of Health has made available an affirmation of quarantine  and affirmation of isolation form that employees may use to demonstrate eligibility for the state’s COVID-19 quarantine leave law for purposes of verifying quarantine or isolation for themselves or their child/dependent. Employees seeking protected leave due to COVID-19 be subject to an order of quarantine or isolation issued by the State of New York, can now provide a self-attestation form rather than obtain an order of quarantine or isolation from a government entity or treating healthcare provider for this purpose.

Compliance Snapshot:

  • Employees can access New York state paid sick benefits for up to three instances of quarantine or isolation orders;
  • Employees that continue to test positive for COVID-19 after the quarantine or isolation period ends may be entitled to additional paid sick leave benefits;
  • In some circumstances, employers are required to pay employees they keep out of work due to exposure or potential exposure to COVID-19.

On January 20, 2021, the New York State Department of Labor (“NYS DOL”) announced its position via informal guidance on compliance with the statewide COVID-19 Quarantine Paid Sick Leave law (“NY Quarantine Leave”). The guidance appears to significantly expand an employer’s obligation to provide leave in response to the ongoing pandemic. As a reminder, employers with any employees working in New York state are required to provide up to fourteen (14) days of job protected, paid sick leave to employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid sick leave an employer is required to provide depends on the number of employees they have and the employer’s net annual income. For a general overview NY Quarantine Leave, please visit our blog post. This article reviews what we have learned from the NYS DOL’s compliance guidance.

  • Employees that continue to test positive after a quarantine or isolation order may be entitled to additional paid sick leave benefits.

The recent guidance clarified that if an employee tests positive for COVID-19 after exhausting a mandatory quarantine or isolation order and therefore cannot return to work, the employee will be automatically deemed to be subject to another quarantine or isolation order from the New York Department of Health and therefore entitled to NY Quarantine Leave. However, to receive this additional period of benefits, the employee must submit documentation from a medical provider or testing facility confirming the positive COVID-19 results (if the COVID-19 test was employer administered, the employer may not require the employee to submit additional documentation).

The guidance also made clear that employees can access NY Quarantine Leave benefits for up to three COVID-19 quarantine or isolation orders and clarifies that the second and third instances must be based on a positive COVID-19 test.

  • Employees who previously used NY Quarantine Leave and returned to work can access additional paid sick leave benefits if they subsequently test positive for COVID-19.

Similar to the scenario discussed above, if an employee returns to work after taking NY Quarantine Leave and subsequently tests positive for COVID-19, the employee is automatically deemed to be subject to a mandatory order of isolation and is entitled to an additional period of paid sick leave benefits. The employee will be required to submit documentation from a medical provider or testing facility confirming the positive COVID-19 results to access the leave.

  • If an employer requires an employee testing positive for COVID-19 to remain out of work, that employee may access NY Quarantine Leave benefits.

The guidance requires New York employers to pay employees whom they send home due to exposure or potential exposure to COVID-19 if they meet following:

  1. The employee is not otherwise subject to a mandatory quarantine or isolation order; and
  2. The employer mandates that the employee “not report” to work due to the employee’s exposure or potential exposure to COVID-19 (regardless of whether the exposure occurred in the workplace)

The guidance requires employers to pay the employee at the employee’s regular rate of pay until: (a) the employer permits the employee to return to work, or (b) the employee becomes subject to a COVID-19 quarantine or isolation order. Then, if the employee becomes subject to such an order, employers must provide the employee NY Quarantine Leave for the duration of the order.

Employer Considerations

Employers should be aware of the extended sick leave benefits that their employees may be entitled to for COVID-19 qualifying reasons. Given the expansive nature of this informal guidance and the potential for legal challenges, employers are encouraged to consult with counsel on their preferred approach to compliance.

Additional Resources

Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2021 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved

Lizet Ramirez – Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.