3.21.20

As we previously reported, Governor Andrew Cuomo signed a law on March 18, 2020, requiring employers to give unpaid and paid leave benefits to New York employees subject to a mandatory or precautionary order of quarantine or isolation. His office has just issued guidance clarifying the new law. Here are the big takeaways from the guidance:

  • Scope of Law. The law defines “mandatory or precautionary order of quarantine or isolation” to mean “a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” This somewhat circular definition left employers confused about who qualified for COVID-19 quarantine leave. The new guidance provides some clarity, but not much. It seems that in order to obtain COVID-19 quarantine leave under this law, an employee needs an official document from a government entity ordering them personally to quarantine or isolate themselves. It also appears that Governor Cuomo’s executive orders ordering the closure of certain businesses (e.g., restaurants and bars) and requiring 100 percent of non-essential workers to work from home do not mean that those impacted employees necessarily qualify for COVID-19 quarantine leave. If Governor Cuomo issues a full-blown shelter-from-home quarantine order to all New York residents, the answer may be different.

  • Exemption. The guidance emphasizes that even if an employee is under a quarantine order, they are not entitled to COVID-19 quarantine leave if they are not displaying symptoms and are physically able to work from home.

  • Existing Sick Leave, PTO, and Other Accrued Leave. The guidance clarifies that employers must provide COVID-19 quarantine leave separate and apart from existing sick leave, PTO, and other accrued leave. So, if an employer has 100 or more employees, a qualifying employee could receive 14 days of COVID-19 quarantine leave and then still be able to use other existing PTO.

  • COVID-19 Quarantine Leave is Automatic. An eligible employee does not have to apply to receive COVID-19 quarantine leave from their employer. However, employees do need to apply to receive family leave benefits and disability benefits related to COVID-19.

  • Self-Quarantine. An employee is not eligible for COVID-19 quarantine leave if they decide to self-quarantine. To qualify for the leave, an employee needs an order of quarantine from the State of New York, New York State Department of Health, local board of health, or any other government entity authorized to issue a COVID-19 quarantine order.

  • Temporary or Permanent Business Closure. It appears that an employee is not eligible for COVID-19 quarantine leave if he or she is out of work due to a temporary or permanent business closure. Those employees are, however, entitled to apply for unemployment insurance benefits. Employers should consider advising terminated employees that they can apply for unemployment insurance due to COVID-19- related business closures.

  • Procedures and Forms. Governor Cuomo’s website contains step-by-step instructions on how to apply for COVID-19 related family leave benefits and disability benefits, and it provides special forms that employees should use.

If you have any questions about this fluid situation, please contact the attorneys in Constangy’s New York City Office.

Please be aware that substantial changes in the governmental guidance and underlying laws are occurring on almost a daily basis, which will impact the analysis of the legal issues related to COVID-19. It is critical that you check the Resource Center often for the most recent information and stay in continual contact with your Constangy attorney.

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