Paid Sick Leave

CDC Updated Guidance Regarding COVID-19 and Its Potential Impact on New York State COVID-19 Paid Leave

March 6, 2024

By Adam P. Mastroleo

On March 1, 2024, the Centers for Disease Control and Prevention (CDC) issued updated guidance related to COVID-19 prevention and treatment. Prior to March 1, 2024, the CDC recommended that individuals who test positive for COVID-19 should isolate for a minimum of five days following a positive test and also follow a period of post-isolation precautions.

The CDC’s new Respiratory Virus Guidance

The CDC’s new Respiratory Virus Guidance includes several changes to its prior COVID-19 specific guidance. Initially, the new guidance applies to individuals who contract respiratory illnesses including COVID-19, flu and RSV, and no longer focuses on COVID-19 alone. The guidance explains that this change was made to address the most common respiratory viruses that cause significant amounts of disease, especially in the fall and winters seasons.

Next, the new guidance eliminates the five day isolation requirement, and instead recommends that individuals with these respiratory illnesses stay home and away from others until at least 24 hours after both their symptoms are getting better overall and they have not had a fever without the use of fever-reducing medication. According to FAQs provided by the CDC, “improving symptoms” means that a person is starting to feel better, and the body is returning to normal after an infection. The guidance also encourages added precautions over the next five days after time at home is over.

Finally, the guidance states that it is intended to apply in general community settings but not in healthcare settings. The CDC offers separate and specific guidance for COVID-19 in healthcare settings, which can be found here. The CDC also states that it has been working with education partners to develop infection prevention and control guidance for schools, and that this guidance should be released prior to the 2024-2025 school year.

NYS COVID-19 Leave Statute

Employers across New York state are likely wondering what impact, if any, the change in CDC guidance has on New York’s COVID-19 Paid Leave statute.

By way of review, New York’s COVID-19 Paid Leave law states that employers are required to provide employees paid leave if they are subject to a mandatory or precautionary order of isolation or quarantine issued by the New York State Department of Health (NYSDOH) (or any governmental entity similarly authorized). The length of leave depends on the employer’s size and income.

As reported on our blog here, as of Sept. 14, 2022, the NYSDOH issued updated COVID-19 quarantine and isolation guidance stating that it would follow the CDC guidelines on quarantine and isolation. With respect to obtaining an order of isolation or quarantine, NYSDOH guidance currently states, “The New York State Department of Health is following the Centers for Disease Control and Prevention’s (CDC) isolation and precautions for people with COVID-19 guidance, which provides information to those who tested positive. Currently, only orders of isolation are required.”

Effect of the CDC Guidance on Employers’ Obligation to Provide NYS COVID-19 Leave

With the CDC’s elimination of the five day isolation requirement, New York employers are faced with the question of whether they must continue offering COVID-19 Paid Leave. Arguably, without a specific CDC isolation requirement, COVID-19 paid leave will no longer be required. However, the new CDC guidance still recommends that individuals who have respiratory illness, including COVID-19, stay home and away from others until at least 24 hours after both their symptoms are getting better overall and they have not had a fever. It is not clear if New York state will continue to interpret this as an isolation requirement that would entitle employees to COVID-19 Paid Leave. As such, whether New York employers must continue to provide COVID-19 Paid leave is unclear.

It is also worth noting that Gov. Hochul’s 2025 Executive Budget Proposal includes proposed legislation that would end the State’s COVID-19 Paid Sick Leave Law as of July 31, 2024. To date, that legislation has not been voted on or passed, but it may be adopted in the near future.

Bond will continue to monitor developments related to COVID-19 Paid Leave and will publish updated guidance and information as it becomes available. Employers with questions about COVID-19 Paid Leave, or any of the information contained in this memo, can contact Adam Mastroleo, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are in regular contact.

New York City’s Earned Safe and Sick Time Act Amendment: Private Right of Action

February 6, 2024

By Lance D. Willoughby-Hudson

On Jan. 20, 2024, The New York City Council amended the City’s Earned Safe and Sick Time Act (ESSTA), to create a private right of action for employees claiming violations of ESSTA. The new law amends Section 20-924 of the New York City Administrative Code and allows employees to commence a civil action alleging a violation of ESSTA within two years of the date the employee knew or should have known of the alleged violation. The new law becomes effective March 20, 2024.

Currently, the sole redress for employees alleging violations of ESSTA is to submit an administrative complaint to the New York City Department of Consumer and Worker Protection (DCWP). The new amendment will allow employees to file both an administrative complaint with the DCWP and a civil action in a court of competent jurisdiction for the same alleged ESSTA violation. Employees are not required to file an administrative complaint with the DCWP prior to commencing an action in court for alleged ESSTA violations.

If an employee files both a civil suit and a DCWP complaint against the employer for the same alleged ESSTA violation, the DCWP will stay its investigation until it receives notice that the civil suit has been withdrawn or dismissed without prejudice. Once DCWP receives notice of a final judgment or settlement of the civil action, DCWP may dismiss the complaint unless it determines that the complaint alleges a violation that was not resolved by such judgment or settlement. The employee must notify DCWP within 30 days after the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.

Employees who prove a violation of ESSTA may recover:

  • Three times the wages that should have been paid pursuant to ESSTA or $250, whichever is greater, for every instance where an employee is not compensated properly by the employer for safe and sick time taken.
  • $500 for every instance where an employee requested safe and sick time that was (a) wrongfully denied by the employer and not taken by the employee; (b) wrongfully conditioned upon a requirement that the employee search or find a replacement worker prior to approval; or (c) wrongfully subjected to a requirement that the employee work additional hours to make up for the original hours for which the employee was scheduled, without the mutual consent of the employer and employee.
  • Full compensation for wages and benefits lost, plus $500 and equitable relief as deemed appropriate, for every instance of retaliation and interference.
  • $2,500, full compensation, including wages and benefits lost; and equitable relief, including reinstatement, as deemed appropriate for each instance of unlawful discharge from employment.
  • $500 for each employee covered by a policy that does not provide or allow for the use of safe and sick time pursuant to ESSTA.

In addition, the amendment permits an employee to seek injunctive relief and declaratory relief, attorney’s fees and costs, and any other relief that the court deems appropriate.

The amendment also expands ESSTA’s civil penalty provisions for entities found to be in violation of provisions regarding the accrual and use of sick or safe time or retaliation, on a per employee basis, of up to $500 to be paid to the city for the first violation. Subsequent violations that occur within two (2) years of any previous violation, entities will be liable of up to $750, not to exceed $1,000 for each succeeding violation.

If you have any questions about the information presented in this news alert, please contact Lance Willoughby-Hudson, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

Recent Amendments to New York City’s Earned Safe and Sick Time Act

October 3, 2023

By Mallory A. Campbell, Samuel G. Dobre, and Camisha Parkins*

On Sept. 15, 2023, the New York City Department of Consumer and Worker Protection adopted several amendments to the City’s Earned Safe and Sick Time Act (ESSTA). Notably, some of the key amendments include changes to 1) what constitutes an “employee” under the ESSTA; 2) how to calculate an employer’s size to meet safe/sick time requirements; 3) when it is permissible to request documentation from employees for safe and sick leave; 4) information on requirements for employees to notify their employer for use of leave; 5) calculating an employee’s rate of pay; and 6) updates that should be made to an employer’s ESSTA workplace policy. These amendments take effect on Oct. 15, 2023. A brief summary of some of the notable changes are detailed below.

Read More >> Recent Amendments to New York City’s Earned Safe and Sick Time Act

Is The End Near? COVID Paid Leave Developments

June 21, 2023

By Erin S. Torcello and Stephanie H. Fedorka

Since the announcement of the end of the federal Public Health Emergency, many clients have inquired as to the status of New York’s COVID-19 Paid Leave Law. 

As a quick recap, on March 18, 2020, in the infancy of the COVID-19 pandemic, then-Governor Cuomo signed a bill that guaranteed certain paid and unpaid leave benefits for New Yorkers subject to a mandatory or precautionary order of quarantine or isolation as a result of COVID-19 (COVID Paid Leave). While the law has remained the same since its enactment, its application has changed as the State and Federal rules regarding quarantine and isolation have changed. For example, at the beginning of the pandemic, the State issued its own rules regarding quarantine and isolation, but now relies exclusively on guidance from the Centers for Disease Control and Prevention to determine appropriate quarantine and isolation protocols.

Read More >> Is The End Near? COVID Paid Leave Developments

Earned Safe and Sick Time Act Proposal

December 9, 2022

By Jane M. Sovern and Paige Carey

New York City’s Earned Safe and Sick Time Act (ESSTA or Act) provides covered employees with the right to use safe and sick leave as it accrues for a delineated list of circumstances. On Aug. 11, 2022, the New York City Council introduced a proposal to amend the ESSTA’s definition of “employee.” Under this proposal, certain independent contractors would qualify as employees and receive benefit coverage under the Act. The proposal would require hiring entities to engage in detailed analyses of individuals providing services to determine wither they are independent contractors or employees.

Read More >> Earned Safe and Sick Time Act Proposal

New York Publishes Final Paid Sick Leave Regulations

January 4, 2022

By Theresa E. Rusnak

On Dec. 22, 2021, New York published its final paid sick leave regulations. These regulations are identical to the proposed regulations, initially published on Dec. 9, 2020. New York Paid Sick Leave (PSL) requires employers to provide paid leave to employees relating to an employee’s or an employee’s family member’s medical needs, or for reasons relating to domestic violence and similar offenses. Since Jan. 1, 2021, employers have been required to provide this leave to all New York employees. 

Read More >> New York Publishes Final Paid Sick Leave Regulations