January 28, 2021
Author(s): Kimberly K. Harding
The NYS DOL has released guidance that has the potential to drastically increase the amount of COVID-19 leave NY-based employers may be obligated to provide to employees.
On January 20, 2021, the New York State (NYS) Department of Labor (DOL) issued “Guidance on Use of COVID-19 Sick Leave.” The guidance is ostensibly intended to clarify the circumstances in which employees may be entitled to leave under the State’s COVID-19 emergency sick leave law, which was passed last March and discussed in our prior alert. However, while the guidance provides some useful clarifications for employers, including potential limits on an employee’s ability to take sick leave in multiple instances, it also appears to drastically expand the circumstances in which employers may be obligated to provide leave to employees.
As noted in the prior alert, the law requires employers to provide “up to” fourteen (14) days of paid sick leave in the sole event that an employee is the subject of a “mandatory or precautionary order of quarantine or isolation” issued by a local Department of Health or other authorized entity due to COVID-19 exposure or infection (a COVID-19 Order), and where the employee is not able to perform their duties remotely. The law does not explicitly require an employer to provide leave in any instance other than when an employee is subject to a COVID-19 Order. However, the law provides that the NYS DOL has the authority to adopt regulations and issue guidance to “effectuate any of the provisions of this act” and that such regulations or guidance may address issues including “standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”
In the immediate wake of the law, the NYS DOL issued limited guidance, primarily relating to the use of New York State Paid Family Leave benefits under the law. However, the new guidance significantly alters the landscape by limiting the circumstances in which an employee must obtain a COVID-19 Order before becoming eligible for leave and expanding the circumstances in which an employer may be obligated to pay an employee who is out of work due to COVID-19 exposure.
Although the guidance is intended to provide clarity, it leaves some important related issues unaddressed. For instance, the guidance does not include any provisions permitting an employer to request or require documentation or other information regarding potential exposure outside of the workplace, leaving employers virtually powerless to manage this provision. Further, there is an argument to be made that the law could require employers to provide days (or even weeks) of leave even without a COVID-19 Order, to the extent that the employer takes the exceedingly rational step of requiring employees who report potential COVID-19 exposure to remain out of the workplace.
Given that the guidance sweepingly expands the benefits under the law, in a manner seemingly inconsistent with the statutory language, it is possible that it will be subject to legal challenges, or that the DOL will elect to issue subsequent guidance to clarify or limit the scope of these changes. However, in the interim, employers must reckon with this new guidance and should consult with counsel to determine any necessary modifications to their COVID-19 protocols or sick leave policies.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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