New York City Issues Order Permitting Self-Certification for Employees to Be Eligible for New York State Quarantine Leave

New York City has issued an Order (the Order) allowing qualifying individuals who either live or work in New York City to use leave under New York State’s Quarantine Leave Law (the Law) through self-certification.

As we chronicled in advisories in March and April (March 18, March 19, March 26, April 1), New York State enacted its Quarantine Leave Law on March 18, 2020. The Law provides for job-protected leave, but only with an order of quarantine or isolation from a government entity duly authorized to issue one or, alternatively, a treating healthcare provider’s certification that the employee will qualify for such an order.

However, because New York City has been inundated with tens of thousands of cases of COVID-19, the necessary orders of quarantine and isolation have not always been readily available on an individualized basis. Accordingly, the Order permits employees to self-certify that they are entitled to take leave under the Law.

Applying the Order to the Leave Process

Under the Order, to apply for leave an employee must complete and sign one of three appendices (each available via the above link to the Order):

• Appendix A applies to healthcare employees;
• Appendix B applies to employees who are not healthcare workers but who are otherwise essential employees as defined by the state; and
• Appendix C applies to employees who are not essential employees.

Each Appendix requires the employee seeking leave under the Law to affirm the truth of the statements contained in the applicable Appendix. An employee who completes Appendix A or B must submit the applicable Appendix to his or her employer, along with additional documentation including test results or evidence of a medical consultation showing that the employee’s isolation is necessary. An employee who completes Appendix C must submit such documentation only to the extent that it is available.

Which Employees Are Affected by the Order?

The Order is applicable to those employees who:

• Have tested positive for COVID-19;
• Have symptoms of COVID-19 and were in contact with someone who tested positive; or
• Meet another qualification for mandatory isolation by the New York City Department of Health, the New York State Department of Health, or the Centers for Disease Control and Prevention.

Importantly, the Order does not apply to an employee who is asymptomatic but who still must quarantine or isolate after having been in close contact with a person who has tested positive for COVID-19, or a person who is experiencing or who has recently experienced symptoms of COVID-19. Such employees should contact the New York City Department of Health to request an individual quarantine order to obtain leave under the Law; the employee may still qualify for leave under the Law but cannot rely on the Order to do so.

According to New York City’s FAQs, qualifying contact with a known case of COVID-19 may include:

• Sharing the same household with a person who has tested positive or is presumed to have COVID-19;
• Having direct physical contact with a person who has tested positive or is presumed to have COVID-19;
• Having direct contact with infectious secretions (i.e., being coughed on or touching a used tissue with a bare hand) of a person who has tested positive or is presumed to have COVID-19;
• Being within six feet for about 10 minutes or sharing an enclosed space for a sustained period with a person who has tested positive or is presumed to have COVID-19;
• Travel from a country that the Centers for Disease Control and Prevention has recognized as a “hotspot” for COVID-19 and has issued a level 2, 3, or 4 travel advisory; or
• Travel on a cruise ship.

Employer COVID-19 Resources

Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during COVID-19 and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.