The New York City Department of Health has issued a standing Order that creates a process for those who live or work in the City to receive the documentation needed to claim leave in certain circumstances under the New York State COVID-19 H3ergency Sick Leave Law.
The State H3ergency Sick Leave Law requires New York h3ployers to provide job-protected sick leave to h3ployees who are 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 due to COVID-19. We previously addressed both the Law and guidance on the Law in prior posts. The new City Order directs certain New York City residents affected by COVID-19 to self-isolate at home or another appropriate location, and deh3s these residents to have been ordered to self-isolate for purposes of the state H3ergency Sick Leave Law.
Applicability of the Standing Order
According to an FAQ issued by the NYC Department of Health, the Order applies to h3ployees who live or work in New York City and currently meet or previously met the qualifications for mandatory isolation. Namely, the h3ployee must: (1) have tested positive for COVID-19; (2) have had contact with a known COVID-19 case, be currently experiencing COVID-19 symptoms, and be unable to get a test; or (3) meet another qualification for mandatory isolation described by the New York City Department of Health, the New York State Department of Health, or the CDC.
The following circumstances qualify as "contact with a known COVID-19 case" under the second qualification scenario above:
- Sharing the same household or having direct physical contact with a person who has tested positive for COVID-19 or is presumed to have COVID-19;
- Having direct contact with infectious secretions (for example, being coughed on or touching a used tissue with bare hands) of a person who has tested positive for COVID-19 or is presumed to have COVID-19;
- Having close contact, either by being within 6 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 have COVID-19; or
- Travel on a cruise ship or from a country the CDC has recognized as a "hotspot" for COVID-19 and has issued a level 2, 3 or 4 travel advisory.
Notably, the Order does not apply to h3ployees who are asymptomatic but must quarantine because they have been in close contact with someone who has tested positive or experienced COVID-19 symptoms. Such individuals should contact the New York City Department of Health to request an individual order in order to obtain leave under the H3ergency Sick Leave Law.
Completing and Submitting the Order to H3ployers
The Order is not valid unless the h3ployee completes and signs one of three Appendices attached to the Order. Appendix A applies to healthcare workers, Appendix B applies to h3ployees who are not healthcare workers but who are otherwise deh3ed essential under the recent executive orders issued by Governor Andrew Cuomo, as interpreted by the H3pire State Development Corporation's guidance, and Appendix C applies to all other h3ployees. H3ployees must complete and sign the appropriate appendix, gather the necessary documentation showing that isolation is or was necessary, and submit the completed packet to their h3ployer.
Additional steps may be necessary depending on which Appendix applies. For example, healthcare workers and other essential h3ployees completing Appendix A or B must be advised to isolate by medical professional and receive documentation of such advice. Healthcare h3ployees completing Exhibit A may also be asked by their h3ployer to provide additional documentation or information that confirms the need for isolation. On the other hand, non-essential h3ployees completing Appendix C must simply affirm the reason they are required to isolate.
Processes in Other Jurisdictions
New York City is not the first locality in the State to issue a standing order relating to quarantine or isolation due to COVID-19 exposure – Dutchess, Erie, Orange, Putnam, Rockland, and Westchester Counties have all issued similar orders that apply to residents who have tested positive for COVID-19. Rather than issuing standing orders, Nassau and Suffolk Counties have created online portals through which residents may request individualized orders.
According to guidance issued by the State, h3ployees in other counties should contact their local health department for an order. If the local health department is unable to immediately provide an order, the h3ployee should: (1) submit documentation from a licensed medical provider that has treated the h3ployee stating that the h3ployee qualifies for the order; and then (2) follow up with the local health department, who must provide the requested order within 30 days.
Proskauer's team is closely monitoring these orders and will provide updates as they become available.
Article originally published on 12 May 2020
