Article contributed by Valerie Bluth, Ellenoff Grossman & Schole LLP
As Omicron continues to spread and businesses are increasingly faced with employees testing positive for COVID-19, employers must be mindful of their obligations under the NY Quarantine Leave Law, NYC paid sick leave law and NY vaccination pay law. A refresher on these requirements follows.
NY Quarantine Leave
Employees who must quarantine because they test positive for COVID-19 or because they were in close contact with someone who has COVID-19 will be eligible for NY Quarantine Leave (“NYQL”). NYQL is available in addition to any other employer-provided sick leave or paid time off.
All employees on NYQL are entitled to job protection for the duration of their quarantine, but the number of paid leave days the employer must provide will depend on the employer’s size:
- Employers with 10 or fewer employees and a net income less than $1 million: 0 days
- Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million: 5 days
- Employers with 100 or more employees: 14 days
Employers are only required to pay employees for shifts/work days that the employee misses due to their quarantine. Employees may also be entitled to COVID-19 disability and Paid Family Leave benefits for the remainder of their quarantine once the employer’s pay obligation has ended.
Employers must provide employees who exhausted their initial NYQL entitlement with a second and third period of NYQL under the same terms, including with respect to the length of time off and pay, if the employee (a) returned to work after their initial NYQL, then subsequently received a positive COVID-19 test, or (b) used and exhausted their initial NYQL but continues to test positive for COVID-19 after the end of their quarantine period.
It is important to note that the NYQL leave bank doesn’t reset just because an employee uses some of their initial NYQL allotment. That is, if an employee is entitled to 14 days of paid NYQL from their employer and used 7 days of NYQL because they were in close contact with someone with COVID-19 in June, and subsequently tests positive for COVID-19 in January, they still have 7 days of left from the initial NYQL entitlement to use at that time. Only if the employee still could not return to work because, for example, they are still experiencing severe symptoms would a second 14-day NYQL leave bank become available.
For larger employers, the second or third quarantine period may never come into play given the recently-updated NY and CDC guidelines shortening the quarantine period for individuals who test positive for COVID-19 to 5 days after the onset of symptoms or, if asymptomatic, the date the test was taken, down from 10 days. Midsize employers, however, should pay close attention to whether an employee may have more employer-paid NYQL available after their initial 5 days of NYQL have been paid out.
Employees may also take NYQL if their minor dependent child is subject to a quarantine order, but the business does not need to pay the employee – rather, they can apply for NY COVID-19 Paid Family Leave to care for their child.
Pay is also due to employees who are required to stay home by their employer even when not required to quarantine under applicable federal, state and local rules, such as out of fear of COVID-19 exposure. This time off and pay cannot be not charged against an employee’s NYQL entitlement, or any other available paid time off.
Importantly, if a business temporarily closes and no one is working, such as because there is not enough staff available due to a COVID-19 outbreak, the obligation to pay NYQL stops on the day the business closes. This is true even if an employee is out of work on NYQL as of the date the business closes, but the employee may be eligible to again use NYQL at the time the business reopens if the employee is still, or subsequently, required to
quarantine.
Sick Time
NYC employers must provide employees with paid sick time which may be used, among other reasons, when a business closes due to a public health emergency. Therefore, when a business closes due to COVID-19 reasons, employers should pay employees their available paid sick time while the business is closed.
New York employers outside NYC do not need to pay employees their sick time if the business closes temporarily – business closure due to a public health emergency is not a stated reason to use sick leave under the state’s paid sick leave law.
Vaccination Pay
With the advent of Omicron and the government push to get people vaccinated, employers in NY are reminded that they must provide employees with up to 4 hours of paid time off to get vaccinated per vaccine appointment, including boosters.
In addition, NYC employers must now also pay employees for up to 4 hours when they need to take time off to accompany their child to a vaccine appointment, or to care for their child that is suffering temporary side effects after their vaccine shot.
If your business operates outside of NY, there may be additional location-specific obligations that apply with respect to COVID-19 sick leave and vaccination pay. Businesses are encouraged to consult with experienced labor and employment counsel to ensure compliance with the multitude of ever-changing COVID-19 restrictions and requirements, both in NY and beyond.
Valerie Bluth is a Partner in the Labor & Employment Group at Ellenoff Grossman & Schole LLP. For more than ten years, Ms. Bluth has exclusively represented and advised clients in employment-related matters, with a particular focus in the hospitality industry. Above all, Ms. Bluth works tirelessly to ensure clients are in compliance with an ever-changing landscape of federal, state and local employment laws, especially with respect to pay practices and employment policies, and to devise practical solutions for any employment problems that might arise. Ms. Bluth can be reached at (212) 370-1300 or vbluth@egsllp.com.
