NYC Department of Health and Mental Hygiene Order Streamlines the NY COVID-19 Paid Sick Leave Process
On April 19, 2020, the NYC Commissioner of Health and Mental Hygiene issued a blanket Order for persons who self-identify as requiring mandatory isolation due to COVID-19 to isolate at home (the “Order”). The Order applies to all people who work or reside in New York City. It enables individuals to qualify for immediate paid time off under New York’s Emergency Paid Sick Leave (“NY EPSL”). The purpose of the Order is to create a process for New York City employees and residents who have tested positive for COVID-19 or have symptoms of COVID-19, to obtain the documentation necessary to claim COVID-19 specific paid sick leave benefits from their employer under the NY EPSL.
NY EPSL Eligibility
In March, the NY EPSL went into effect (as detailed in our March 20th memorandum) requiring employers to provide certain paid and unpaid sick leave to employees subject to a mandatory or precautionary order of quarantine or isolation related to COVID-19. Entities that may issue such an order of quarantine include the State of New York, New York State Department of Health, local Board of Health or any government entity authorized to issue such an order. Now, individuals who meet the qualifications for mandatory isolation can submit the applicable Appendix form to their employer, along with additional documentation (including test results or evidence of a medical consultation), and will not have to obtain an order of quarantine.
The Order requires mandatory isolation for those who have tested positive for COVID-19 or have symptoms of COVID-19 and were in contact with someone who tested positive for or had symptoms of COVID-19. Such individuals can now use the streamlined process set forth in the Order to qualify for paid sick leave under the NY EPSL.
Frequently Asked Questions
As set forth in the FAQs released by the NYC Health Department, the Order applies to employees applying for paid sick leave from their employer under the NY EPSL who live or work in New York City, and currently meet or previously met the qualifications for mandatory isolation related to COVID-19. The qualifications for mandatory isolation include those who either (1) tested positive for COVID-19, or (2) have symptoms of COVID-19 and were in contact with someone who tested positive for COVID-19 or who had symptoms of COVID-19.
The FAQs identify several different scenarios that qualify as having contact with a known COVID-19 case, including:
- Sharing the same household with a person who has tested positive for COVID-19 or presumed to have COVID-19;
- Having direct physical contact with a person who has tested positive for COVID-19 or presumed to have COVID-19;
- Having direct contact with infectious secretions (for example, being coughed on or touching a used paper tissue with a bare hand) of a person who has tested positive for COVID-19 or is presumed to have COVID-19;
- Having contact, either by being within six feet for about 10 minutes or being in the same enclosed space for a sustained period, with a person who has tested positive for COVID-19 or is presumed to have COVID-19;
- Travel from a country the Centers for Disease Control and Prevention (CDC) has recognized as a “hotspot” for COVID-19 and has issued a level 2, 3 or 4 travel advisory, or traveling on a cruise ship.
Notably, the FAQs make clear that the Order does not apply to those employees who are not sick but have a friend/neighbor/colleague or someone in their household that tested positive COVID-19. If an employee lives with or has otherwise been in close contact (such as within 6 feet for a sustained period of time, such as 10 minutes) with a person who has tested positive for COVID-19 or who is experiencing or who has recently experienced symptoms of COVID-19, and the employee cannot work because he or she is required to quarantine, the employee must call the NYC Health Department to request an individual quarantine order to claim paid sick leave under the NY EPSL.
Appendices to the Order
An employee must complete and sign one of three appendices attached to the Order. Attached to the Order are three separate appendices (Appendix A, B and C); Appendix A applies to health care workers; Appendix B applies to essential employees that are not health care workers; and Appendix C applies to nonessential workers.
To claim emergency sick leave, the employee must fill out the applicable Appendix, gather the information described in the Appendix, and submit the completed Appendix and accompanying documentation to their employer. Additionally, the employee must affirm that the statements made in the Appendix are true and accurate to the best of the employee’s knowledge.
While employees filling out Appendices A and B must submit documentation showing that isolation is or was necessary, those filling out Appendix C must submit such documentation only if it is available.
Employers must be aware of this Order and its impact on NY EPSL. Employees who submit the applicable form from the Appendices and other required documentation qualify for NY EPSL. Additionally, bear in mind that employees may be eligible for NY EPSL even if they are not subject to the Order. Attached to this memorandum is a copy of the Order and the FAQs.
If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Jennifer Schmalz, Robert L. Sacks, Jaclyn Ruocco, Joseph Tangredi, or Brian D. Polivy.