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New Guidance on Quarantine and Return to Work Employers still have paid leave obligations when employees are quarantined

Not even a week into the New Year, employers were asked to readjust their practices in response to the Omicron variant of COVID-19 and a holiday surge in cases.

On December 24, 2021 and again on January 4, 2022 the New York Department of Health (DOH) revised its recommended quarantine period. The first recommendation reduced quarantine times for fully vaccinated individuals in healthcare and other essential industries, but the latest guidance has reduced the quarantine and isolation period for all individuals.

What are the current guidelines for positive tests and exposure?

The current requirements vary for individuals who have received the COVID-19 vaccine and the booster shot versus individuals who are not vaccinated.

For EVERYONE who tests positive, regardless of vaccination status, they must isolate for 5 days, where day 0 is the day of symptom onset or (if asymptomatic) the day of collection of the first positive specimen.

If a person is asymptomatic at the end of 5 days or if symptoms are resolving, isolation ends and the individual should wear a well-fitting mask while around others for an additional 5 days.

Individuals who are moderately-severely immunocompromised should continue to follow a 10 day isolation. Individuals who are unable to wear a well-fitting mask for 5 days after a 5-day isolation should also follow the 10 day isolation.

There are specific quarantine guidelines for health care professionals in situations where there are current or imminent staffing shortages.

Even with shortened quarantine times, employers must still provide paid time off.

New York requires that employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation are eligible for job protected leave, and in most cases, paid leave. It should be noted that a positive COVID-19 test has been deemed as an order of quarantine or isolation.

• Employers with 10 or fewer employees and a net income less than $1 million will provide job protection for the duration of the quarantine order and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries.
• Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million will provide at least one workweek of paid sick leave, job protection for the duration of the quarantine order, and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine.
• Employers with 100 or more employees, as well as all public employers (regardless of number of employees), will provide at least two workweeks  of paid sick leave and guarantee job protection for the duration of the quarantine order.

 These requirements apply to all employees, without regard to full or part-time status or length of service. It is important to note that this leave is in addition to the New York paid sick leave requirements enacted January 1 of last year. An employee who qualifies for this leave cannot be required to use other accrued or credited time off. 

Employees who are able to work remotely during a quarantine or isolation are not eligible for NYS COVID Sick Leave.

An employee may be eligible for up to three periods of this paid COVID sick leave, so if an employee received this paid time off in September 2021, they may still be eligible for a second or third period of paid time off if they test positive for COVID-19.

What constitutes a quarantine or isolation order?

For much of the pandemic, quarantine orders were issued by New York State or the appropriate county health department or a medical provider. That continues to be true; however, due to an increase in cases and staffing issues, several counties have taken steps to allow individuals to self-certify for isolation/quarantine based on home test results.  Several counties will no longer contact every person who tests positive for coronavirus and instead expects them to self-report their results on the county website. 

Albany, Monroe, Onondaga, and several other counties have self-attestation forms available on their websites. These new forms are legal documentation and employers must accept these forms for purposes of an employee taking COVID sick leave, and for New York Paid Family Leave COVID-19 claims.  It is crucial to remind those who test positive to immediately isolate and notify their close contacts who may have been exposed.

What should employers be doing now?

Employers should have contingency plans in place for employee absences, which should include cross training employees and encouraging work-from-home for employees who are able to do so.

Employers should know the vaccination status of every employee. It is not a HIPAA violation to ask for this information. An employee’s vaccination status is an important factor in how much time they may need to miss work and what the rules are for masking upon their return.

Employers should be taking steps to reduce the spread of COVID-19 at their workplace. Chief among these steps is to implement and follow either a mask-for-all policy when unable to properly social distance or implement a vaccine mandate for all employees and visitors, in accordance with Gov. Hochul’s December 10, 2021 order which is in effect through 1/15/2022 and may be extended beyond the 15^th.

HR One is hosting a free webinar on this and other COVID-19 related subjects Friday January 15^th at 10:00 AM.