New York State Adopts CDC’s New COVID-19 Quarantine and Isolation Rules for Employers

Epstein Becker & Green

As we previously reported, the Centers for Disease Control and Prevention (CDC) updated its guidance to shorten its isolation and quarantine requirements. Joining other states and localities, on January 4, 2022, the New York State Department of Health (NYS DOH) adopted the CDC’s guidance, and then issued a new set of isolation and quarantine guidance (NYS DOH Guidance) on January 14, 2022. Also on January 14, 2022, the NYS DOH issued new Frequently Asked Questions for Employers (FAQs) to aid employers in their compliance with these new requirements. 

The NYS DOH Guidance conveniently provides the who, what, where, when, and how’s of quarantine—the period of time when someone should separate and monitor for symptoms after coming into “close contact”[1] with someone confirmed or suspected to have contracted COVID-19—and isolation—the time during which people with confirmed COVID-19 (tested positive) or suspected COVID-19 (symptomatic) are separated from those without COVID-19.  

The NYS DOH Guidance supersedes the essential worker portion of the December 24, 2021, NYS DOH Shortened Isolation guidance and the January 4, 2022, NYS DOH document entitled “Interim Updated Isolation and Quarantine Guidance.” The NYS DOH Guidance does not, however, change any previously issued guidance that remains applicable to workers in health care settings. Moreover, although New York City has not revised its guidance, as of January 17, 2022, NYC has updated its website to incorporate by reference the revised NYS DOH Guidance. 

Employers in NYS, including those in NYC, should be aware of the revised NYS DOH Guidance, and particularly the FAQs, which became effective immediately.    

Quarantine

Who Must Quarantine After Close Contact?

According to the NYS DOH Guidance and the FAQs, employees are required to quarantine if they (1) are not vaccinated, (2) have not completed their primary vaccination series (one dose of J&J or two doses of Pfizer or Moderna), or (3) are eligible for, but have not received, a recommended booster shot. Employees are not required to quarantine if they (1) have received all recommended vaccine doses, including booster shots (if eligible), and/or (2) have tested positive for COVID-19 within the last 90 days.

What Does “Quarantining” Mean?

Employees who are required to quarantine should stay home and away from other people for at least 5 days. Day 0 is the date the employee was in close contact with a COVID-19 confirmed case or suspected case. If symptoms do not develop, the employee should get tested on or after day 5. If the test results are negative, the employee’s quarantine period can end, but the employee should continue to wear a mask until day 10 after the date of the close contact. If the asymptomatic employee tests positive, however, the employee should isolate 5 days from the date of testing (see the “Isolation” section below). The NYS DOH Guidance clarifies that, “[i]f it is not possible to get a test 5 days after the last close contact with someone with COVID-19, quarantine can end after day 5 if there have been NO COVID-19 symptoms” (emphasis in original). On the other hand, if the employee does develop symptoms following close contact, the employee should get tested, and if the test result is positive, the employee must isolate as set forth below. 

Isolation

Who Must Isolate?

Regardless of vaccination status, employees who are confirmed to have COVID-19 or who are showing symptoms of COVID-19 need to isolate. 

What Does Isolating Mean?

Isolating means that employees should stay home, in a separate room from other household members if possible, for at least 5 full days. Day 0 is the first day of symptoms or the date of the day the positive test was taken for asymptomatic individuals. For employees who did not develop symptoms, isolation can end on day 5, but masks should be worn until day 10. For employees who developed symptoms, isolation can end after 5 full days if the employee (1) is fever-free for 24 hours without the use of fever-reducing medication and (2) other symptoms have improved. Just as for asymptomatic employees, masks should be worn until day 10. If fever continues or other symptoms have not improved after 5 days of isolation, the employee should continue to isolate until there is no fever for 24 hours without the use of fever-reducing medication and other symptoms have improved. For someone who develops symptoms after testing positive, the 5 days of isolation starts over, meaning day 0 is the day the symptoms developed, regardless of the prior positive COVID-19 test.

The NYS DOH Guidance has clarified that “[t]esting to end isolation is not required.” If an employee has access to a test and chooses to test, then the NYS DOH recommends the use of an antigen test towards the end of day 5, if fever-free without the use of fever-reducing medication and other symptoms have improved. If the test is positive, the employee should continue to isolate until day 10. If negative, however, isolation can end, but employees should continue to wear a mask around others until day 10. Importantly, as noted above, if the employee does not test at the end of the 5-day isolation period and meets the requirements listed above, isolation may end after the fifth day. Accordingly, employers should consider whether they wish to encourage employees to test after day 5.

Obtaining an Isolation or Quarantine Order

New York State employers are required to provide COVID-19 sick pay for employees who are subject to a quarantine or isolation order. Per guidance issued in January 2021, employers are limited to providing such COVID-19 sick pay up to a maximum of three times. In order to qualify for such paid leave, employees must submit a copy of a quarantine or isolation order, or, as explained below, an affirmation of isolation or quarantine, as applicable. To be eligible for the second and third instances of COVID-19 sick pay, the employee would need to present an isolation order based on an employee’s own positive COVID-19 test; COVID-19 sick pay is not available for quarantine orders for the second and third instances of leave.

Isolation and Quarantine Affirmation Forms

The State has prepared quarantine and isolation affirmation forms to aid employees in submitting information to employers in the event they do not have a copy of, or have not obtained, an order from their health department. The forms indicate that they may be used as if they were individual orders for isolation or quarantine issued by the NYS DOH or relevant County Commissioner of Health or designee. Thus, they may be used in lieu of an actual order.

What New York Employers Should Do Now 

  • If you are a New York State or City employer, become familiar with the new reduced quarantine and isolation rules for those who are vaccinated, including the new rules surrounding those who are eligible to receive booster shots. You can refer to the NYS DOH’s Isolation and Quarantine Table as a quick go-to guide for all of the different scenarios described above.
  • Consider amending your policies and procedures (including daily attestation forms, safety plans, and COVID-19 testing policies and procedures) to account for these new rules. However, you may continue to maintain your existing policies, providing for longer quarantine and isolation, depending on your workforce and your ability to track the specifics that new requirements impose. Be mindful that, to the extent employees are kept out of work longer than the mandatory isolation or quarantine periods, you may be responsible for paying employees who cannot work remotely.
  • Consider whether to implement testing policies within the workplace to end quarantine and/or isolation. Although not required by the CDC or NYS DOH, requiring employees to test to end quarantine and/or isolation may be an added safety measure within the workplace. On the other hand, if you have workforces where employees must be present to perform their work, be mindful that such testing requirements may necessitate longer isolation or quarantine periods than would otherwise be required.
  • Maintain masking requirements. Although the NYS DOH Guidance contains varied times during which masks must be worn following isolation and quarantine, be aware that NYS still maintains its mandatory masking policy, for businesses that do not require vaccination as a condition of entry. The NYS DOH Guidance articulates that individuals who are required to quarantine and isolate should “not go to places where [] a mask cannot be worn . . . and avoid eating around others at home and at work until after 10 days after the date of the last close contact.” Keep that in mind, and ensure your policies require masks in break rooms, cafeterias, and other communal rooms. Further, consider restricting access to such areas for employees subject to isolation/quarantine until 10 days after the start of their quarantine and/or isolation period.   

ENDNOTE

[1] Please note that although the definitions of “isolation” and “quarantine” have changed, the definition of “close contact” remains the same. According to the NYS DOH, someone who has been in “close contact” is someone who (1) is sharing the same household with a confirmed or suspected COVID-19 case (“Case”), (2) has had direct physical contact with a Case, (3) has had direct contact with infectious secretions of a Case (e.g., talking, being coughed on), or (4) has been within 6 feet of a Case for 10 minutes or more within 24 hours. This is a different standard than the CDC’s definition, which uses a 15-minute period within 24 hours.  

[View source.]

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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