For the first time in nearly two years, the Centers for Disease Control and Prevention (“CDC”) and the New York State Department of Health (“NYSDOH”) have loosened the protocol guidance for COVID-19. A mandatory five-day isolation period is no longer recommended for persons who test positive.
Although the new guidance may come as welcome news to employers, it is still unclear what impact the new guidance will have on New York State’s paid COVID-19 leave law.
New CDC Guidelines for COVID-19
On March 1, 2024, the CDC removed its existing COVID-19-specific guidance and began treating COVID-19 the same as other common communicable respiratory infections, such as influenza and respiratory syncytial virus.
Pursuant to the CDC’s prior COVID-19 guidance, any persons who began showing COVID-19 like symptoms or tested positive for COVID-19 were told to “isolate” for five full days before returning to work, even if their symptoms had quickly resolved or they were asymptomatic.
The CDC’s new guidance recommends that any person who begins showing the common symptoms of a communicable respiratory disease (i.e., fever, chills, fatigue, cough, runny nose or headache) should “stay at home and away from others.”
The CDC further recommends symptomatic persons remain at home until: (1) they have been fever-free for 24 hours without the help of fever-reducing medication; and (2) their other symptoms are showing improvement. That period of time is no longer referred to as “isolation,” and there is no minimum amount of time that a person must stay home. Returning to work is permitted whenever those two criteria are met. Then, after returning to work, the CDC recommends wearing a mask and physically distancing from co-workers for five additional days.
In a memorandum dated March 7, 2024, the NYSDOH adopted all of the CDC’s new guidance as its own statewide recommendation and retired its prior COVID-19 guidance requiring a five-day isolation period after testing positive.
The new CDC guidelines, as adopted by the NYSDOH, are applicable to regular community, workplace, and school settings. They are not intended to replace the current setting-specific guidance applicable to employees of health care facilities. Additionally, the CDC announced it intends to issue separate school-specific guidance sometime before the start of the 2024-2025 school year.
Unclear Impact on New York State Paid COVID-19 Leave
The impact of the new NYSDOH guidance on New York State’s paid COVID-19 leave law is not yet clear.
Since March 2020, that law has required public and certain private employers to provide paid COVID-19 leave during an employee’s “period of mandatory or precautionary quarantine or isolation” pursuant to an order from the NYSDOH or other authorized public health agency. In the early phases of the pandemic, local public health agencies sent official orders of isolation to all COVID-positive persons. More recently, employees who tested positive were permitted to fill out their own agency-approved isolation orders using a NYSDOH affirmation template.
As New York’s paid COVID-19 leave law only applies to missed workdays occurring during an agency-ordered isolation/quarantine, the NYSDOH’s decision to remove the mandatory five-day isolation from its protocol makes the status of paid COVID-19 leave uncertain.
As of the date of this Legal Alert, the NYSDOH has not yet provided clarification about the impact of its guidance on paid COVID-19 leave. It remains to be seen whether the new recommendation to “stay home and away from others” will be interpreted as a form of isolation covered by the paid leave law. We will promptly advise you if the State provides any further guidance addressing this ambiguity. In the interim, we recommend that you contact us to discuss how best to address this issue in the context of your workplace, including any relevant policies, collective bargaining agreements or contract provisions.
Finally, even if no immediate clarification is issued regarding the impact of the new CDC guidance, New York’s paid COVID-19 leave law has already been targeted for removal. Governor Hochul’s 2025 Executive Budget Proposal seeks repeal of the law effective July 31, 2024. However, the proposed budget has not yet been passed by the Legislature. We will continue to keep you advised of the status of the proposed budget and pending repeal of the COVID-19 leave law.
Our office remains ready to answer any questions or assist you in determining how individual situations should be addressed. Please contact any of the firm’s Labor Relations & Employment Law attorneys for assistance.
