As the Omicron strain continues to spread and businesses are increasingly faced with employees testing positive for COVID-19, we take this opportunity to remind you about employer obligations under the NY Quarantine Leave Law, NYC paid sick leave law and, for businesses considering shuttering operations temporarily or permanently, the federal and NYS WARN Act.
NY Quarantine Leave
Employees who test positive for COVID-19 or are unvaccinated and in known close contact with someone who has COVID-19 will be eligible for New York Quarantine Leave (“NYQL”). 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
Employees may also be entitled to COVID-19 disability and Paid Family Leave benefits for the remainder of their quarantine. Employers must provide employees who exhausted their initial NYQL 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. For more information, please refer to our previous Client Alert.
Employers are only required to pay employees for shifts/work days that the employee misses due to their quarantine. Pay for NYQL is separate and apart from any other sick leave or paid time off the employee may otherwise be entitled to.
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.
NY Quarantine Leave – Business Temporarily Closed
If a business temporarily closes and no one is working, the obligation to pay NYQL stops on the day the business closes, even if an employee is out of work on NYQL as of the date the business closes. An employee may be eligible to again use NYQL at the time the business reopens if the employee is under a quarantine order.
Under New York City law, employers must provide employees with paid sick time which may be used, amongst other reasons, when a business closes due to a public health emergency. Therefore, when a business closes due to COVID-19 reasons, the business should pay employees their available paid sick time while the business is closed.
Employers outside New York City do not need to pay employees their sick time if the business closes temporarily because business closure due to a public health emergency is not a stated reason to use sick leave under New York State’s paid sick leave law.
The federal Worker Adjustment and Retraining Notification Act (WARN) and its New York State counterpart generally require employers give advance written notice to employees and certain other parties when an employer plans to implement a temporary closure that causes an employment loss. Furloughing an employee or placing them on unpaid leave is not considered an “employment loss” unless the employee is out of work for more than six months.
If a business is unsure whether the closure will last more than six months, the business will need to give notice at the time of closure to fulfill WARN requirements.
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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.