From time to time, Keane & Beane, P.C., issues Legal Alerts pertaining to developing legal issues of interest to our clients. On January 20, 2021, the New York State Department of Labor (“NYSDOL”) issued guidance on an employee’s right to paid sick leave under the New York State COVID-19 Sick Leave Law (“Law”). The NYSDOL guidance can be found here. While the guidance provides some clarity on whether an employee is entitled to sick leave under the Law for multiple orders of quarantine/isolation, it also raises additional questions based upon a new requirement it imposes which does not appear to be grounded in the statutory language of the Law.
As set forth in prior Legal Alerts, the Law requires, among other things, the provision of up to fourteen (14) calendar days of paid sick leave to employees who are subject to an order of quarantine/isolation, depending on the size of their employer. Our prior Legal Alerts can be found here and here. An open question regarding the Law has been whether an employee is entitled to paid sick leave each time he or she is placed under an order of quarantine/isolation, or whether the Law provided for a one-time benefit. More than ten (10) months after the enactment of the Law, the NYSDOL has finally answered this question.
Pursuant to the NYSDOL’s new guidance, employees are entitled to paid sick leave under the Law for up to three (3) orders of quarantine/isolation. However, in order to be eligible for paid sick leave for the second or third order of quarantine/isolation, the employee must test positive for COVID-19, rather than merely having close contact with someone with COVID-19. In addition, in such instances, the employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19 (unless the employer is the entity who administered the test).
In addition to clarifying the number of times employees are eligible for paid sick leave under the Law, the guidance also imposes a new requirement upon employers who prohibit employees who are not subject to an order of quarantine/isolation from reporting to work due to “exposure or potential exposure” to COVID-19, regardless of whether such “exposure or potential exposure” occurred in the workplace. Specifically, the guidance requires such employers to continue to pay such employees until they are permitted to return to work or until they become subject to an order of quarantine/isolation, at which time the provisions of the Law will apply. This new requirement is problematic for numerous reasons.
First, the guidance does not define what constitutes “exposure or potential exposure.” As such, it is unclear whether this new requirement applies to any situation where an employee is prohibited by an employer from reporting to work related to COVID-19 concerns, such as reporting COVID-19 related symptoms, or whether it only applies to situations where an employee, who has not yet been placed under an order of quarantine/isolation, can identify an “exposure or potential exposure” to an individual who is under an order of quarantine/isolation or has actually tested positive for COVID-19. If the former, not only does the requirement impose a significant burden upon already financial strapped employers, it also creates the potential for abuse by employees. Until further clarification is received from the NYSDOL, we recommend taking the position that the requirement only applies to the latter, narrower, situation.
Second, the NYSDOL appears to have exceeded its authority in issuing the guidance by imposing obligations upon employers that are not required by the statutory language of the Law. As an administrative agency, the NYSDOL is authorized to interpret and enforce the laws that it is charged with administering. However, the NYSDOL has no authority to create laws on its own and, therefore, cannot impose requirements which are outside of the scope of the statutory language of the Law. Notably, the statutory language of the Law only requires employers to provide paid sick leave to employees who are subject to a governmental order of quarantine/isolation. There is no requirement to otherwise pay employees when no order of quarantine/isolation is in place, as the guidance now suggests.
Third, the guidance also appears to create the irrational situation where employees who have already been subject to three (3) or more orders of quarantine/isolation would be entitled to be paid while their employer prohibits them from reporting to work due to “exposure or potential exposure,” but would then become ineligible for pay upon being placed under an order of quarantine/isolation.
Based upon all of the foregoing, the guidance appears ripe for challenge in the courts on the basis that the NYSDOL has exceeded its authority. Nonetheless, regardless of whether the new requirement is actually enforceable, it reflects the current position of the NYSDOL. Given the confusion and uncertainty caused by the new guidance, as well as the rapidly changing landscape of the law in response to the COVID-19 pandemic, we strongly encourage all of our clients to contact us to discuss any questions they may have regarding whether they are required to continue to pay employees who have been prohibited from reporting to work due to COVID-19 related reasons.
Consult Counsel Regarding Specific Questions If you have any questions or concerns regarding the updated guidance, this Legal Alert or require further assistance with this topic, please contact one of our Education Law Attorneys.
