As explained in our earlier legal alert, New York State enacted legislation in March 2020 authorizing sick leave for all employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (referred to as “New York’s COVID-19 Sick Leave law”). This law provides paid and unpaid sick leave to employees (depending on the size of the employer), and expands New York’s Paid Family Leave Law and Disability Benefit Law to cover employees subject to a quarantine order.

A few weeks later, on April 2, 2020, the Federal Families First Coronavirus Response Act (FFCRA) took effect. The FFCRA requires covered employers to provide most employees with paid leave for specific COVID-19-related reasons. Notably, the FFCRA allows employers to elect to exclude “health care providers” from its leave requirements.

New York’s COVID-19 Sick Leave law does not contain a similar carve out for “health care providers,” and the New York State Department of Health and New York State Department of Labor, on May 17, 2020, issued guidance addressing health care employees’ eligibility to take leave under the New York law.

Expansion of Health Care Employees’ Eligibility for Leave

Prior to the new Guidance, New York’s COVID-19 Sick Leave law applied only to employees ordered to quarantine or isolate by New York state, the Department of Health, a local health board, or another government entity authorized to issue a quarantine or isolation order. The Guidance significantly expands the rights of health care employees to take leave.

The new guidance provides that if an employer directs a health care employee not to work, or prohibits a health care employee from working because the employer suspects or confirms that the health care employee has been exposed to COVID-19, exhibits symptoms of COVID-19, and/or is diagnosed with COVID-19, that health care employee shall be deemed to be subject to a mandatory order of quarantine from the Department of Health. A health care employee in this circumstance will, as a result, be entitled to leave under New York’s COVID-19 Sick Leave law and will not need to provide the employer with any additional documentation to support the need for leave.

In addition, if a health care employee has tested positive for COVID-19 and/or is symptomatic for COVID-19, the health care employee must not report to work and will be deemed subject to a mandatory order of isolation from the Department of Health. Under these circumstances, however, the health care employee must submit documentation from a licensed medical provider that treated the health care employee, attesting that the health care employee has tested positive for COVID-19 and/or is symptomatic for COVID-19. (If the employer administered the test for COVID-19 that produced the positive result, the health care employee is not required to submit documentation of a positive result.)

Employer Rights When Faced with a “Staffing Shortage”

The guidance affords employers the ability to require health care employees who are taking leave pursuant to New York’s COVID-19 Sick Leave law to return to work in limited circumstances where the employer can demonstrate a “staffing shortage.”

The guidance also states that a “staffing shortage” requires that the employer demonstrate the following:

• The employer has a staffing shortage of the type of health care employee that the employer wishes to report to work. (For example, if an employer can demonstrate that it has a shortage of respiratory therapists, but cannot demonstrate that it has a shortage of nurses, the employer can only require respiratory therapists to report to work.)
• The employer’s staffing shortage would adversely impact the employer’s ability to safely provide health care services and the employer has not been able to address the shortage through other means.

If an employer can demonstrate a “staffing shortage,” the guidance makes clear that the employer may require an employee to return-to-work under two circumstances:

• An employer may require, to the extent no other facts unrelated to COVID-19 dictate otherwise, a health care employee who has been exposed to COVID-19 to report to work if the health care employee meets all of the following conditions: (i) the health care employee is asymptomatic for COVID-19; (ii) the health care employee has not tested positive for COVID-19; and (iii) the health care employee’s contacts with confirmed or suspected cases of COVID-19 are limited to those that are asymptomatic.
• An employer may require, to the extent no other facts unrelated to COVID-19 dictate otherwise, a health care employee who has tested positive for COVID-19 and/or has been symptomatic for COVID-19 to return to work prior to the end of a 14-day quarantine or isolation period only under the following conditions:
  • The health care employee with confirmed or suspected COVID-19 must maintain isolation for at least 7 days after onset of symptoms, must be fever-free for at least 72 hours without the use of fever reducing medications, and must have other symptoms improving before returning to work; or
  • The health care employee who is asymptomatic but who has tested positive for COVID-19 must maintain isolation for at least 7 days after the date of the positive test and, if the employee develops symptoms during that time, the employee must maintain isolation for at least 7 days after developing those symptoms, must be fever-free for at least 72 hours without the use of fever reducing medications, and must have other symptoms improving, before returning to work.

“Health Care Employee” Defined

The guidance broadly defines a “health care employee” to include: “a person employed at a doctor’s office, hospital, long-term care facility, outpatient clinic, nursing home, end-stage renal disease facility, post-secondary educational institution offering health care instruction, medical school, local health department or agency, assisted living residence, adult care facility, residence for people with developmental disabilities, home health provider, emergency medical services agency, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, including any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”

Health care employers should become familiar with and use the new Guidance when addressing any situations that may present a need for leave related to COVID-19. Likewise, the “staffing shortage” requirements in the Guidance require a close and fact-specific review to ensure compliance.