DOH Issues Guidance Concerning the Use of Sick Leave by Health Care Employees

Over the weekend, DOH released guidance regarding the use of paid sick leave for health care employees. This guidance is intended to supplement previous guidance on the issue. All prior guidance remains in effect.

1) For purposes of New York’s COVID-19 sick leave law and this guidance, a “health care employee” is a person employed at a doctor’s office, hospital, long-term care facility, outpatient clinic, nursing home, end stage renal disease facility, post-secondary educational institution offering health care instruction, medical school, local health department or agency, assisted living residence, adult care facility, residence for people with developmental disabilities, home health provider, emergency medical services agency, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, including any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

2) A health care employee who returns to work following a period of mandatory quarantine or isolation and who subsequently receives a positive diagnostic test result for COVID-19 must not report to work. The health care employee shall be deemed to be subject to a mandatory order of isolation from the Department of Health and shall be entitled to sick leave as required by New York’s COVID-19 sick leave law, whether or not the health care employee already has received sick leave as required by the law for the first period of quarantine or isolation. However, the health care employee must submit documentation from a licensed medical provider or testing facility attesting that the health care employee has tested positive for COVID-19. The health care employee does not need to submit documentation of a positive result if the health care employee’s employer gave the health care employee the test for COVID-19 that showed the positive result.

3) A health care employee who is subject to an order of quarantine or isolation but continues to test positive for COVID-19 after the end of such quarantine or isolation period must not report to work. The health care employee shall be deemed to be subject to a second mandatory order of isolation from the Department of Health and shall be entitled to sick leave as required by New York’s COVID-19 sick leave law for the second period of isolation. However, the health care employee must submit documentation from a licensed medical provider or testing facility attesting that the health care employee has received a positive diagnostic test for COVID-19 after completing the initial period of isolation. The health care employee does not need to submit documentation of a positive result if the health care employee’s employer gave the health care employee the test for COVID-19 that showed the positive result.

4) In no event shall a health care employee qualify for sick leave under New York’s COVID-19 sick leave law for more than three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test in accordance with paragraphs 2 and 3.

For additional information about COVID-19, please visit the New York State Department of Health’s coronavirus website at https://coronavirus.health.ny.gov/home. For additional information about New York’s COVID-19 sick leave law, please visit https://ny.gov/COVIDpaidsickleave.

Governor Issues Executive Order (EO) 205 on Travel Restrictions

As HCP reported last week, Governor Cuomo released EO 205 in relation to quarantine restrictions on travelers arriving in New York.

In response to increased rates of COVID-19 transmission in certain states within the United States, and to protect New York’s successful containment of COVID-19, the State has joined with New Jersey and Connecticut in jointly issuing a travel advisory for anyone returning from travel to states that have a significant degree of community-wide spread of COVID-19.

The travel advisory went into effect at 12:01 AM Thursday, June 25, 2020.
Travelers from within one of the designated states must quarantine for 14 days upon entering New York from the last travel within such designated state.

Designated states currently include: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah.

The Department of Health (DOH/the Department) has also released interim guidance related to EO 205.

The guidance covers:
  • Criteria for Designating States with Significant Community Spread;
  • Guidance for Travel;
  • Quarantine Requirements; and
  • Travel Advisory Exemptions for Essential Workers.

In addition, the guidance cross-references previously issued guidance about returning to work after possible infection or exposure to COVID-19.

HCP is seeking further guidance and clarification on how and if the exemptions for essential workers apply when an essential worker travels to a designated state for reasons unrelated to employment and subsequently returns home to New York to resume working. HCP will report back as more information becomes available.

Pursuant to the guidance as written, exceptions to the travel advisory are permitted for essential workers and are limited based on the duration of time such worker was present in a designated state(s), as well as the intended duration of time in New York as follows:

Short Term – for essential workers traveling to New York State for a period of less than 12 hours.

  • This includes instances such as an essential worker passing through New York, delivering goods, awaiting flight layovers, and other short duration activities.
  • Essential workers should stay in their vehicle and/or limit personal exposure by avoiding public spaces as much as possible.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces.
  • Essential workers are required, to the extent possible, to avoid extended periods in public, contact with strangers, and large congregate settings.

Medium Term – for essential workers traveling to New York State for a period of less than 36 hours, requiring them to stay overnight.

  • This includes instances such as an essential worker delivering multiple goods in New York, awaiting longer flight layover, and other medium duration activities.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces.
  • Essential workers are required, to the extent possible, to avoid extended periods in public, contact with strangers, and large congregate settings.

Long Term – for essential workers traveling to New York State for a period of greater than 36 hours, requiring them to stay several days.

  • This includes instances such as an essential worker working on longer projects, fulfilling extended employment obligations, and other longer duration activities.
  • Essential workers should seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distancing, clean and disinfect workspaces for a minimum of 14 days.
  • Essential workers, to the extent possible, are required to avoid extended periods in public, contact with strangers, and large congregate settings for a period of, at least, 7 days.
  • Essential workers and their employers are expected to comply with previously issued DOH guidance regarding return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.

Conclusion

The travel advisory requires all New Yorkers, as well as those visiting from out of state, to take personal responsibility for complying with the advisory in the best interest of public health and safety.

Cuomo Issues Additional EO Regarding Employee Paid Leave Related to Travel to States with Significant Community Spread of COVID

Late Friday night, Governor Cuomo issued an additional EO clarifying that employees quarantined due to travel to a designated state are not entitled to New York State COVID paid sick leave. Employers who have to date voluntarily provided federal emergency paid sick leave may still need to provide such leave.

In short, employees who voluntarily travel to any of the states designated as having a COVID-19 infection rate that exceeds the established criteria – who then becomes quarantined by a public health official as a result - would not be eligible for NYS emergency paid sick leave.

Read the full Executive Order

Employers are to provide advance notice of the travel advisory, the possibility of quarantine, and the potential loss of paid sick leave benefits if an employee were to become quarantined. Employers should provide a general notice to all employees that this type of travel could result in loss of benefits.

A sample notice could read:
To all employees:

By order of the Governor, anyone traveling to a state (after June 25th) with positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, and which the commissioner of the department of health has designated as meeting these conditions is required to quarantine for 14 days. On Friday, the Governor issued an Executive Order clarifying that employees who travel voluntarily to any of these states shall not be eligible for benefits under the New York State emergency paid sick leave law. Employees should be aware that voluntary travel to any of these states could result in loss of pay during the required quarantine.

The list of impacted states will be updated frequently and can be found on the Department of Health website.

EVV Technical Assistance Call Tomorrow

DOH will hold its next EVV Technical Assistance Call tomorrow, Tuesday, June 30 at 2:00 pm. Recordings of previously held EVV Technical Assistance Calls are available here.