UPDATED: New York Issues Important Guidance on COVID-19 Quarantine Leave Law

New York State has issued guidance detailing answers to many frequently asked questions about the newly implemented COVID-19 quarantine leave law. We summarized the key components of the emergency law, which was enacted on March 18, 2020 and became effective immediately, in a previous blog post. In short, employers are immediately obligated to provide certain paid/unpaid leave (with duration and pay status varying based on the employer’s size), job protection, and expanded paid family leave and disability benefits to employees who are subject to a government-issued order of mandatory or precautionary quarantine or isolation due to COVID-19.

The new guidance from New York State confirms that the leave and benefits associated with the new law require an electronic or paper order of quarantine or isolation, and do not cover many COVID-19-related purposes. We address the relevant portions of the New York State guidance below:

Key Information for Employers:

• Eligibility for New COVID-19 Quarantine Protections

The leave only applies to “employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation.”  (emphasis added.)  The FAQ section of the guidance details that “[t]his new law provides benefits in cases where an individual is under an “order” of quarantine – either mandatory or precautionary. (emphasis added.) Entities that may issue an “order” include the State of New York, New York State Department of Health, local Board of Health [such as New York City’s Department of Health and Mental Hygiene] or any government entity authorized to issue such order.

• Obtaining a Quarantine or Isolation Order

In a guidance update issued March 27th, New York State adopted a specific protocol for employees seeking to obtain an order of quarantine or isolation that would qualify them for benefits under the law. To get an order of quarantine or isolation due to COVID-19, employees should first contact their local health department. If the local health department is unable to immediately provide the employee an order, the employee may instead:

1. Submit documentation from a licensed medical provider that has treated them, attesting that they qualify for the order; and

2. Follow up with their local health department (which must provide requested orders within 30 days) to obtain the order as soon as it is available.

The guidance directs that, when the employee’s local health department cannot immediately issue the order, the licensed medical provider must document the specific reason for the order in one or more of the following qualifying ways:

• To qualify for a “Mandatory Isolation Order,” the medical provider must attest that the employee (or the employee’s minor dependent child in certain circumstances) has tested positive for COVID-19; or that testing is not currently available for the employee, but the employee has COVID-19 symptoms and has had contact with a known COVID-19 case.
• To qualify for “Mandatory Quarantine Order,” the medical provider must attest that the employee (or the employee’s minor dependent child in certain circumstances) has been in close contact with someone who has tested positive for COVID-19 or who is currently in mandatory isolation; or has COVID-19 symptoms and has returned within the past 14 days from a country designated with a level 2, 3, or 4 CDC advisory for COVID-19.
• To qualify for “Precautionary Quarantine Order,” the medical provider must attest that the employee (or the employee’s minor dependent child in certain circumstances) is asymptomatic and has returned within the past 14 days from a country designated with a CDC level 2, 3, or 4 advisory for COVID-19; or has been determined to have had proximate exposure with someone who has tested positive for COVID-19 while that person was symptomatic.

Once the employee completes this process and obtains one of the above-mentioned “orders,” they then qualify for the quarantine leave allotted under the law.

As thousands of COVID-19 cases have inundated healthcare and public health workers in New York City, obtaining individualized quarantine or isolation orders there has been difficult. To streamline the process, New York City's local health department has issued a general order permitting employees who live or work in the five boroughs to self-certify that they are entitled to take leave, so long as they also submit applicable documentation demonstrating their need for isolation. The New York City general order is applicable to employees who (i) have tested positive for COVID-19; (ii) have COVID-19 symptoms and were in contact with someone who tested positive; or (iii) meet other qualifications for mandatory isolation orders as set forth above. New York City residents and employees who are asymptomatic but fear they have had exposure to someone with COVID-19 must still contact the City's Department of Health and Mental Hygiene to request an individual quarantine order, as they are not covered by the City's general order.  

• Quarantine Leave Is Available Retroactively

Employees may take quarantine leave if they are still currently under an order of mandatory or precautionary quarantine or order of isolation issued by the State, department of health, local board of health, or government entity even if that order was issued prior to the enactment of the COVID-19 quarantine leave (March 18, 2020).

• Schools Closures & Eligibility for Expanded Paid Family Leave

Again, leave eligibility would only apply if the school closure is a result of the quarantine or isolation order; the guidance makes clear that “if [the employee’s] child’s school closes for preventative social distancing,” the closure is likely not covered by the new leave law. Unfortunately, this distinction seems somewhat unhelpful given the current reality of the situation: Governor Cuomo ordered that all New York State schools close from March 18 through at least April 15, 2020, but did not speak to any “order of mandatory or precautionary quarantine” in doing so. It will therefore be difficult to evaluate whether these current school closures qualify employees for leave protections without further guidance from the State.

• Expansion of Disability Benefits & Paid Family Leave for Quarantine Purposes

Similarly, in addressing the question of what documents employees need to provide to qualify for the expanded Paid Family Leave and disability benefits, the State guidance states the following: “For every Paid Family Leave claim you must submit the Request for Paid Family Leave (Form PFL-1). Additionally, depending on the type of leave you are taking you will need to submit either the Request for COVID-19 Quarantine Leave for Yourself or the Request for COVID-19 Quarantine Leave for Minor Child. You will also need to submit the mandatory or precautionary quarantine or order of isolation issued by the State, department of health, local board of health, or government entity.” (emphasis added.) This clarification indicates that these newly expanded benefits are also only available to employees with an actual order of mandatory or precautionary quarantine or isolation.

• Paid Leave is Measured in Calendar Days, Not Work Days

The Guidance clarifies that the number of paid leave days is calendar days (not work days), and the pay required should represent the amount of money that the employee would have otherwise received for the 5 or 14 day period.

•  Employees Taking Leave Must Be Paid Their Regular Rate of Pay

For the applicable paid leave period (5 or 14 days), employers must pay the amount that the worker would have otherwise received had they been continuing to work for that period based upon the amount that the employee was scheduled or would have been scheduled had the employer’s operations continued in its normal due course. Employees who work a fixed schedule or are paid a salary should simply continue to receive pay for the applicable period. For hourly, part-time, commissions salespeople, and other employees who are not paid a fixed wage, employers should determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate.

• Timing of Quarantine Pay

The leave payments are subject to the frequency of pay requirements found in New York Labor Law Section 191. Leave payments should be made in the paycheck for the applicable pay period for the leave.

• Part-Time Employees & Leave Pay

Part-time employees are entitled to receive pay for the number of days/amount of time during the 5-day or 14-day period that they would have otherwise received had the employer’s operations continued in its normal due course.

• Employees May File Complaints Against Their Employers for Non-Compliance

The State guidance notes that employees may file complaints with the New York State Department of Labor if their employer is not providing the required number of sick days for COVID-19 leave or is underpaying employees during their COVID-19 leave.

• Procedures for Quarantine Leave & Expanded Paid Family Leave/Disability Benefits

The guidance specifies that employees do not have to apply for the paid quarantine-related leave. However, if the employee runs out of paid quarantine or other paid leave days from their employer, then the employee would need to apply for Paid Family Leave and disability benefits for further compensation during the rest of the quarantine period. After exhausting the paid quarantine leave, eligible employees may receive their weekly wages through a combination of Paid Family Leave and disability benefits up to a newly increased combined maximum of $2,884.62 per week under the new law ($840.70/week in maximum Paid Family leave benefits and $2,043.92/week in maximum disability benefits). The State has not explicitly addressed whether the regular 26 week cap for disability benefits will be lifted (i.e. whether applicants will be able to receive benefits beyond the regular 26-week period during the COVID-19 outbreak). Nor has the State addressed whether individuals who use Paid Family Leave and disability benefits for COVID-19 purposes will be eligible for separate, regular Paid Family Leave or disability leave benefits once the COVID-19 crisis ends (e.g. an employee who wishes to use Paid Family Leave for newborn bonding later in the year after exhausting 26 weeks of COVID-related disability benefits).
 
To apply for Paid Family Leave/disability benefit compensation during the quarantine period, the employee must send the necessary forms (listed above) to their employer, which has three business days to complete the employer-based sections of the necessary forms and return them to the employee. The employee must then submit their completed forms together with a copy of their order of mandatory or precautionary quarantine (issued by the relevant government entity) to their employer’s disability and Paid Family Leave insurance carrier no later than 30 days from the employee’s first day of leave to avoid losing any benefits. The employer’s insurance carrier must pay or deny these benefits within 18 calendar days of receiving the employee’s completed request for benefits.

• When Businesses Close, Employees Should File for Unemployment Insurance Benefits

If an employer temporarily closes or goes out of business because of COVID-19, the guidance instructs employees to apply for Unemployment Insurance benefits.

Although the State’s guidance provides some clarity on select topics, we hope that the State will update this guidance regularly to address issues that are arising.

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