On January 14, 2022, the New York State Department of Health (NYSDOH) updated its Isolation & Quarantine Guidance to reflect the Centers for Disease Control and Prevention's (CDC) recommendation that individuals who have tested positive for COVID-19 or have been exposed to an individual who has tested positive should quarantine or isolate for at least five days.
On the same day, the NYSDOH also made self-attesting quarantine and isolation forms available through its website. The forms allow employees to resort to self-help to satisfy the statutory requirement that they produce a mandatory or precautionary order of quarantine or isolation to be eligible for paid leave.
As we chronicled in previous advisories, New York enacted its Quarantine Leave Law on March 18, 2020. The law originally provided for job-protected leave, but only with an order of quarantine or isolation from a government entity duly authorized to issue one or, alternatively, a treating healthcare provider's certification that the employee will qualify for such an order.
Now, employees can provide the self-attestation forms rather than obtain an order of quarantine or isolation from a government entity or treating healthcare provider. Specifically, each form states that it may be used for New York Paid Family Leave COVID-19 claims "as if it was an individual Order for [Quarantine or Isolation] issued by the New York State Department of Health or relevant County's Commissioner of Health or designee." Further, the forms bear the signature of the Commissioner of Health and may also apply to the signatory's child or dependent.
In addition to the above, each form contains attestations specific to individuals required to either quarantine or isolate.
Affirmation of Quarantine
The NYSDOH requires individuals to quarantine if they have been in close contact with someone who has COVID-19. This requirement does not apply to (1) individuals over 12 years old who have received all CDC-recommended COVID-19 vaccine doses; (2) anyone between 5 and 11 years old who has completed the primary series of COVID-19 vaccinations; or (3) anyone who has tested positive for COVID-19 in the past 90 days.
The Affirmation of Quarantine can be used by individuals required to quarantine to obtain quarantine benefits. The form requires signatories to confirm that they (or their child or dependent):
1. Have been identified as a close contact to a COVID-19 positive person during their contagious period;
2. Were not up to date on COVID-19 vaccination, including booster shot, at the time of exposure to a COVID-19 positive person during their contagious period; and
3. Have been in quarantine.
The form also requires signatories to verify their (or their child's or dependent's) dates of quarantine, confirm that they have quarantined for five days following the last day of exposure to the COVID-19 positive person, and have remained asymptomatic for five days at the time of signing.
In addition to specifying that the form may be used for Paid Family Leave COVID-19 claims, the Affirmation of Quarantine also notes that it may be used for Quarantine Release and quarantine leave benefits.
Affirmation of Isolation
The NYSDOH requires anyone who (1) has tested positive for COVID-19, or (2) shows symptoms of COVID-19 to isolate, regardless of vaccination status.
The Affirmation of Isolation is available to individuals who are required to isolate. The form is also available for children or dependents who are required to isolate.
The form requires signatories to provide dates of isolation for themselves or their child or dependent. However, the form does not specify the maximum amount of time that must be extended to an employee who has tested positive for COVID-19. Instead, the form includes the attestation that the signatory or their child or dependent "must isolate for the appropriate amount of time . . . consistent with guidance issued by the [DOH], for at least five (5) days from the onset of COVID-19 symptoms OR from the date of the positive COVID-19 test if asymptomatic."
Under the DOH's updated Isolation & Quarantine Guidance, for individuals with COVID-19 who have symptoms but have not been hospitalized or individuals with COVID-19 who have no symptoms, "[i]solation ends after 5 full days if the individual is fever-free for 24 hours without the use of fever-reducing medication and other symptoms have improved."
All employers in New York should review their COVID-19 paid leave practices and policies to make sure they align with the updated Isolation & Quarantine Guidance, as well as New York's allowance of self-attestation forms to substitute for mandatory and precautionary orders of isolation and quarantine. Employers should also train their supervisory and managerial employees, as well as human resources professionals, on the updates to the law.
Employer COVID-19 Resources
Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.