The State Department of Health (DOH) has published on its website self-attesting quarantine and isolation forms that employees may use to demonstrate eligibility for the State’s COVID-19 COVID sick leave pay.
As we have discussed in prior articles, the New York State COVID Sick Leave Law requires employers to provide paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation, as well as for employees caring for a minor or dependent child who is required to quarantine. The law requires employees to be subject to “an order” of quarantine or isolation issued by the State of New York, a state or local health department, or any other governmental entity. In issuing the self-attestation forms, the DOH intends for employers to recognize the attestation as if a governmental entity has issued it for purposes of the COVID sick leave pay. Indeed, the Isolation form, for example, specifically states that “This form may be used for Isolation Release or for New York Paid Family Leave COVID-19 claims as if it was an individual Order for Isolation issued by the New York State Department of Health or relevant County’s Commissioner of Health or designee.”
However, the COVID sick leave law itself never contemplated a self-attesting form, even one that is on a government template. The law, as originally enacted, intended for a government entity to certify to an employee’s need for isolation or quarantine. As we have seen over the course of the pandemic, local departments of health (e.g., Nassau County, Onondaga County) and other governmental entities (e.g., NYC) have turned to self-attestation forms in view of practical challenges in issuing individualized quarantine or isolation orders to thousands of individuals per day. The State DOH’s own form now follows those local efforts.
Employers who have been inundated with requests for paid COVID sick leave should carefully consider whether to recognize self-attesting forms for purposes of paid COVID sick leave. While infected or exposed employees should be provided with the necessary time off from work, the question of who pays for that time off is a separate issue. As we have discussed in the past, COVID sick leave is an independent standalone sick leave benefit that must be paid out to an isolating or quarantining employee, and the employer cannot utilize the employee’s vacation or other PTO accruals for COVID sick leave.
If you have any questions about paid time off requirements related to employees who have been exposed or who are infected with COVID, please let us know.