Complete Employer COVID Guide September 2021

Sep 10

Required COVID Protocol for employees who have, have been exposed to, or have symptoms of COVID 19:

If employees are exposed to a known COVID 19 positive person:

· If you are vaccinated and have no symptoms, proceed as usual, no need to test or quarantine.

· If you are vaccinated and have any symptoms that could be COVID-related, you should stay out of work until you can be tested and receive the results. If you test negative you can return, if positive, must proceed with the COVID infection protocol.

· If you are unvaccinated, you would need to quarantine and isolate for 14 days and if you develop symptoms, get tested.

· In all cases, where any work time is missed during the quarantine/isolation period, it needs to be paid by the Company per still existing NYS COVID leave law (see below).

If employees have symptoms of COVID, without known exposure:

· Here only those unvaccinated should go into quarantine and isolation, and should get tested. If the test comes back negative, they should be able to return to work.

· If you want to be extra cautious, you could follow the same protocol for vaccinated people here, but you don't need to.

· In both cases, you would follow the same leave NYS leave required protocol as mentioned above.

If an employee tests positive:

· Regardless of vaccination status, the person would need to be out 10-14 days depending on their symptom status after 10 days. They are not required to test negative before returning, and if you choose to do this, you would need to pay for the test and any additional leave time needed for this out of pocket.

· The same leave protocol applies as first mentioned above here.

COVID Leave Requirements for Employers:

NYS COVID Leave

All employers in NYS are required to provide leave to employees who are subject to quarantine or isolation orders for COVID reasons (exposure, diagnosis, symptoms, etc.).

Employers with under 100 employees need to provide 5 paid days with additional time up to 14 days of protected time (but unpaid) for the remaining quarantine period.
Employers with over 100 employees need to provide 14 paid days.
Note that some exceptions apply for employers with under 10 employees who have revenue under $1M annually.
If employees have previously taken and used NYS paid COVID leave based on a need to quarantine or isolate due to exposure only, and not a positive test (including time used waiting to receive test results), employees are entitled to up to two additional paid COVID leaves, at the full length required by NYS, in cases where they need to quarantine/isolate again because they've received a positive test. The new rules state that employees now may take up to three NYS COVID leaves if their circumstances require.

The likelihood of an employee testing positive two separate times to be able to take this leave for a total of potentially three times is highly unlikely. However, it is very likely that employees who had to quarantine earlier in the pandemic due to exposure, could test positive for COVID now, in which case you will need to give them additional paid and protected time off, regardless of what was used before.

This paid time is above and beyond the New York Paid Sick Leave time that employers were required to provide effective 1/1/2021. Employers cannot make employees apply paid sick time or other kinds of earned paid time off when they are eligible for NYS COVID leave. That being said, employers may allow employees to use the other paid time off for any portion of the COVID leave that is unpaid, or in cases where additional leave is needed for exposure reasons, and no positive test results are received activating eligibility for additional NYS COVID leave.
If you mandate an employee to receive a negative test to return to work (following exposure or a positive test), if the employee misses additional time beyond the NYS required in waiting for those results, current guidance implies you need to pay them for that additional time. This means you could end up paying the employee for missed time beyond just what is required. Consider this when making decisions about whether to require a negative test upon return, especially since testing result times can vary so greatly.
When it comes to proof of eligibility in order to enforce against abuse of the new 2nd and 3rd COVID leave eligibility, Employers may require proof of positive test results to take these additional leaves.
If employees can work from home they are not entitled to this leave, unless they are too sick to work.

NYS Vaccination Leave

All employers are required to provide up to 4 hours of paid leave to employees each time a dosage is needed or received.
This is, in addition to all other paid time off and leave.
It would be reasonable to work with an employee to have them schedule this outside of work hours.

COVID Leave Options for Employers:

NOTE: FFCRA Leave options and credit eligibility ended on 9/30/2021. This information remains here for reference and backward application where needed.

Families First Coronavirus Response Act Leave Options

Employers can still elect to voluntarily provide Emergency Paid Sick Leave (EPSL) and Emergency Paid Family Leave (EFMLA).
Under the Rescue Plan, employees may take paid EPSL leave (subject to caps of 80 hours and $511/day or $200/day, depending on the reason for leave) or EFMLA leave (subject to a cap of 12 weeks, $200/day) for the following reasons:

o The employee is obtaining the COVID-19 vaccine (Overlaps with NYS Requirement)

o The employee is recovering from an illness, injury or condition related to the COVID-19 vaccine

o The employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 if the employee has been exposed, or the employee’s employer has requested such test or diagnosis (Overlaps with NYS Requirement)

o The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19 (Overlaps with NYS Requirement)

o The employee has been advised by a health care provider to self-quarantine due to COVID-19(Overlaps with NYS Requirement)

o The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis (Overlaps with NYS Requirement)

o The employee is caring for an individual who is subject to a quarantine or isolation order due to COVID-19 (Overlaps with NYS Requirement)

o The employee is caring for his or her son or daughter if the child’s school or place of care has been closed or is unavailable due to COVID-19

o The employee is assisting a loved one in getting the vaccine

o The employee is caring for a loved one who is recovering from an illness, injury or condition related to the COVID-19 vaccine

Word of caution: covered employers who choose to allow employees to use such leave (and thus receive the related tax credits) must make it available to all employees who qualify. This means that employers cannot limit their employees’ eligibility for EPSL or EFMLA leave based on seniority, pay level, or full-time status, etc. Also, the Rescue Plan is unclear about whether employers must elect to provide both EPSL and EFMLA leave to receive the tax credits, however, it is clear that employers cannot prevent employees from taking the maximum allowable EPSL or EFMLA leave provided by the Rescue Plan or restrict usage of the leave to specific months, reasons, etc. Such “picking and choosing” may cause the employer to lose tax credit eligibility.
Employers should consider how the FFCRA tax credits could be used to subsidize the required NYS COVID leave requirements when deciding whether to utilize the FFCRA leave and tax credit, but also should make sure to understand the limitations in applying this as well. Remember, you can apply an employee’s eligibility for FFCRA concurrent with their usage of the NYS COVID leave, and then as a result receive the FFCRA tax credit to be “reimbursed” for that leave time. This being said, employers must take caution to note that the FFCRA leave and credit can only be applied once per employee. This means employers will not be able to receive the tax credit for the second (or third) leaves now required under revised NYS COVID leave requirements in cases where an employee is eligible for NYS COVID leave a second or third time due to a positive COVID test, and has already used FFCRA for the 1st leave.
IRS guidance on how to receive the tax credit can be found here. Employers should also ensure this is being coded properly in payroll in order to receive the credit, but also make themselves more secure in the case of an audit.
Finally, requiring some kind of proof of leave need/eligibility (test result, vaccination proof, etc.) is the best idea in order to secure the business against any kind of audit for tax credit receipt.

Other Employer Requirements to be aware of with COVID:

Each Employer’s HERO Act Plan must be in place, communicated, and activated. More information on this can be found here and here. In general, this means employers should be having people mask, do daily health screenings, and social distance at this point since we are in a designated outbreak status in NYS.
Federal Contractors, employees in the Healthcare sector, and private employers with 100 or more employees will be required to take additional actions requiring vaccinations in some cases, or in some cases weekly testing in lieu of vaccinations. Employers in these sectors should seek additional input on implementing these requirements including how to integrate these practices into job postings, employee screenings, etc. We encourage you to reach out if these terms apply to your business.