Here’s some important updates employers need to know:
For the previous version of this article, click here
NYS COVID Leave Update
In the past 2 weeks, NYS has released new rules on required COVID leave that must be provided to employees, amending the previous New York COVID leave requirements. Remember, as put into place earlier in 2020, employers in NYS are required to provide leave to employees who are subject to quarantine or isolation orders for COVID reasons (exposure, diagnosis, symptoms, etc.). In general, employers with under 100 employees need to provide 5 paid days with additional time up to 14 days of protected time (but unpaid) for the remaining quarantine period, and employers with over 100 employees need to provide 14 paid days. Note that some exceptions apply for employers with under 10 employees who have revenue under $1M annually.
Under the new rule, if employees have previously taken and used NYS paid COVID leave based on a need to quarantine or isolate due to exposure only, and not a positive test (including time used waiting to receive test results), employees are entitled to up to two additional paid COVID leaves, at the full length required by NYS, in cases where they need to quarantine/isolate again because they’ve received a positive test. The new rules state that employees now may take up to three NYS COVID leaves if their circumstances require.
The likelihood of an employee testing positive two separate times to be able to take this leave for a total of potentially three times is highly unlikely. However, it is very likely that employees who had to quarantine earlier in the pandemic due to exposure, could test positive for COVID now, in which case you will need to give them additional paid and protected time off, regardless of what was used before.
Important Distinction from NYS Paid Sick Leave (PSL)
It’s important to remember that this paid time is above and beyond the New York Paid Sick Leave time that employers were required to provide effective 1/1/2021. Employers cannot make employees apply paid sick time or other kinds of earned paid time off when they are eligible for NYS COVID leave. That being said, employers may allow employees to use the other paid time off for any portion of the COVID leave that is unpaid, or in cases where additional leave is needed for exposure reasons, and no positive test results are received activating eligibility for additional NYS COVID leave.
Interaction with FFCRA, which is now optional after 12/31
As mentioned in the original version of this article, unlike NYS COVID leave which currently has no sunset date, the Federal COVID leaves under FFCRA (CARES Act), stopped being required as of 12/31. This leave is still voluntary for employers to provide to employees for quarantine and child or family care reasons due to COVID. Employers should consider the new NYS COVID leave requirements when deciding whether to utilize the FFCRA leave and tax credit, but also should make sure to understand the limitations in applying this as well. Remember, you can apply an employee’s eligibility for FFCRA concurrent with their usage of the NYS COVID leave, and then as a result receive the FFCRA tax credit to be “reimbursed” for that leave time. This being said, employers must take caution to note that the FFCRA leave and credit can only be applied once per employee. This means employers will not be able to receive the tax credit for the second (or third) leaves now required under revised NYS COVID leave requirements in cases where an employee is eligible for NYS COVID leave a second or third time due to a positive COVID test, and has already used FFCRA for the 1st leave.
What else to know:
Some other important things to keep in mind as you work through this complicated leave landscape, and also recent NYS updates:
- If you mandate an employee to receive a negative test to return to work (following exposure or a positive test), if the employee misses additional time beyond the NYS required in waiting for those results, current guidance appears to imply you need to pay them for that additional time. This means you could end up paying the employee for missed time beyond just what is required. Consider this when making decisions about whether to require a negative test upon return, especially since testing result times can vary so greatly.
- Employees who voluntarily travel and then are subject to a quarantine/isolation order upon return, are not eligible for NYS COVID Leave. This means all the above requirements and changes per NYS COVID leave do not apply to these employees. Side note, if you are making FFCRA available voluntarily, there is no stated preclusion for voluntary travel for this leave, so you likely still want to make FFCRA available to those employees, as well as others who have to quarantine or isolate for other reasons, in order to not potentially be accused of “discriminatory” practices.
- When it comes to proof of eligibility in order to enforce against abuse of the new 2nd and 3rd COVID leave eligibility, Employers may require proof of positive test results to take these additional leaves.
As always, we know that these laws are a moving target, and many circumstances are not “black and white”. We encourage any employers who are uncertain about a situation to reach out for help to navigate to make sure you are not inadvertently putting yourself at risk.
Have a question about this information, a tough situation you’re unsure how to handle, or just looking for some reassurance? We can help! Ally HR Partners helps HR people, business owners, and other people leaders who are overwhelmed or unsure tackle their problems, and strategically plan to prevent them in the future! Reach us at Emartin@AllyHRPartners.com.
This post was written by Emily Martin, Owner of Ally HR Partners LLC, a Buffalo-based HR consulting firm that helps small businesses identify and implement custom solutions to their people problems and opportunities. Often a business’ #1 expense, Ally HR Partners believes your people should be your #1 asset. Through an integrative partnership approach, Ally becomes your internal expert on all things HR including compliance assurance, performance management, and strategic HR initiatives designed to make the most out of your Human Capital. For more information about how Ally can work for you, visit AllyHRPartners.com.
