New York Agencies Issue Guidance on COVID-19 Sick Leave for Health Care Workers

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On June 25, 2020, the New York Department of Health (NY DOH) and the New York Department of Labor (NY DOL) issued new guidance, titled New York State Department of Health and New York State Department of Labor Guidance on Use of COVID-19 Sick Leave for Health Care Employers (the “Guidance”). The Guidance is intended to supplement earlier guidance the NY DOH and NY DOL issued governing when health care employees are automatically deemed to be subject to a mandatory or precautionary order of quarantine or isolation, thereby qualifying for paid sick leave under the New York State COVID-19 Sick Leave Law (the “Law”).

The Law requires employers to provide up to 14 days of paid sick leave (depending on the size of the employer, and whether it is a private or public employer) for employees subject to a mandatory or precautionary order of quarantine or isolation issued by a governmental agency. In the Guidance, the NY DOH and NY DOL specifically address scenarios where health care employees may qualify for multiple orders of quarantine or isolation resulting in multiple periods of eligibility for paid COVID-19 sick leave under the Law. 

Who is a “Health Care Employee”?

The Guidance reiterates its earlier guidance in defining a “health care employee”:

a “health care employee” is a person employed at a doctor’s office, hospital, long-term care facility, outpatient clinic, nursing home, end stage renal disease facility, post-secondary educational institution offering health care instruction, medical school, local health department or agency, assisted living residence, adult care facility, residence for people with developmental disabilities, home health provider, emergency medical services agency, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, including any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

Health Care Employees Who Test Positive After a Quarantine or Isolation Can Receive Paid Sick Leave Under the Law For Up to Two Additional Separate Orders of Quarantine or Isolation

The Guidance states that a health care employee who returns to work following a period of mandatory quarantine or isolation, for any reason, and who then receives a positive diagnostic test result for COVID-19, must not report to work.  In such circumstances, the health care employee shall be deemed to be subject to another mandatory order of isolation from the NY DOH and will be entitled to paid COVID-19 sick under the Law for a second time. The health care employee must submit documentation from a licensed medical provider or testing facility attesting that the health care employee has tested positive for COVID-19. The health care employee does not need to submit documentation of a positive result if the health care employee’s employer gave the health care employee the test for COVID-19 that showed the positive result.

The Guidance also states that a health care employee not currently attempting a return to work, who is subject to an order of quarantine or isolation but who also continues to test positive for COVID-19 after the end of such quarantine or isolation period, must not report to work. The health care employee shall, as stated above, be deemed to be subject to another mandatory order of isolation from the NY DOH and shall be entitled to paid COVID-19 sick leave a second time under the Law. The health care employee must submit documentation from a licensed medical provider or testing facility attesting that the health care employee has received a positive diagnostic test for COVID-19 after completing the initial period of isolation. Again, the health care employee does not need to submit documentation of a positive result if the health care employee’s employer gave the health care employee the test for COVID-19 that showed the positive result.

The Guidance states that a health care employee cannot qualify for paid COVID-19 leave under the Law “for more than three orders of quarantine or isolation.” The second and third orders must be based on a positive COVID-19 test as described above.

Implications for Health Care Employers

Before the Guidance, there was ambiguity about whether an employee could receive multiple periods of paid COVID-19 sick leave under the Law. With the Guidance, it appears that the NY DOH and the NY DOL have taken the policy position that health care employees may qualify for paid leave under the Law for up to three orders of mandatory quarantine or isolation. Depending on the facts and circumstances of a health care employee’s work schedule, the size of the employer, and whether the employee received multiple positive COVID-19 tests after an initial period of mandatory isolation or quarantine, a health care employee could qualify for far more than 14 days of paid COVID-19 sick leave based on the Guidance.

Employers of health care employees in New York are encouraged to consult their counsel regarding employer obligations to comply with the NY DOH and NY DOL’s Guidance and any formal regulations issued by either state agency, and about the effects of rapidly changing New York employment laws during the COVID-19 pandemic.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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