On Jan. 20, 2021, the New York State Department of Labor issued a guidance which states that if an employer requires an employee to stay home for fear that the employee has been exposed to COVID-19, the employer MUST pay the employee for the days out until the employee can return to work or obtains an order of quarantine. During this limbo period, although the guidance does not specifically state as much, it appears that the employee would not be charged with use of employer-provided PTO or sick days, or use of NY paid COVID-19 sick pay. This appears contrary to an earlier interpretation by commentators that if an employee is precluded from coming to work but does not have an order of quarantine or cannot show that an order had been applied for, the employee’s sole remedy would be filing for unemployment insurance benefits.

The guidance also states that where an employee returns to work after having been quarantined pursuant to an order, and tests positive a second or third time, the employer must pay the employee the New York COVID-19 sick pay, so long as the employee provides a doctor’s certification of a positive test, even without an additional order. The same is true if an employee out of work on quarantine tests positive after having served the mandatory quarantine period. However, the guidance makes clear that an employer need not require an employee who has been quarantined to take a COVID-19 test at the end of the quarantine period prior to returning to work.

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Photo of Jerrold Goldberg Jerrold Goldberg

Jerrold F. Goldberg Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group. He has been practicing in virtually all aspects of labor and employment law since 1979, including the traditional labor/union-management area, employment discrimination, executive employment, severance agreements and wage and hour…

Jerrold F. Goldberg Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group. He has been practicing in virtually all aspects of labor and employment law since 1979, including the traditional labor/union-management area, employment discrimination, executive employment, severance agreements and wage and hour laws. Jerry exclusively represents management clients primarily in the real estate and hospitality industries in transactional matters, including commercial and residential building and hotel sales and purchases, administrative compliance, such as 421-a prevailing wage issues, and lease, property management and concessionaire relationships, as well as all aspects of labor and employment litigation. This includes traditional labor litigation, such as union management arbitration, N.L.R.B. representation and unfair labor practice proceedings, and strike and picketing injunctive actions, wage and hour litigation involving misclassification, overtime and service charge/gratuity issues, and employment discrimination and restrictive covenant litigation in federal and state courts and administrative agencies.