As New York continues to take steps to limit the spread of COVID 19, the recently announced travel advisory is causing unintended consequences. Employers across the state are caught in the interplay between employees vacation plans and government regulations. They continue to ask us what to do in order to not get fined. Let us try to help.
New York State and the federal government have both passed Paid Sick Leave legislation as it relates to COVID. When they passed this legislation, there was no consideration of restricted travel within the US. Yet that’s exactly what we have now and it’s an issue. Employers are now finding themselves “paying” for employees to get a 3-week vacation (the regular one week and the 14 days of quarantine) when it should only be the one week.
We worked with the Governor’s office to clarify the New York law. In an Executive Order, the Governor made it clear VOLUNTARY travel to a state that is deemed to be unsafe is not eligible for Paid Sick leave. Please understand that only applies to VOLUNTARY travel. Conversely, if you, as a company, send someone to work on one of those states, and that person upon their return cannot work remotely, you will have to pay them Paid Sick Leave for the 14-day quarantine.
The issue now switches to the federal law passed under the Family First Corona Recovery Act, the FFCRA. Under that law, employers must provide Paid Sick Leave to someone quarantined due to COVID. However, like New York, the law isn’t clear about VOLUNTARY travel. What is clear though is that some people are trying to take advantage of the ambiguity to get a longer paid vacation. And who’s to blame to them?
As we did with New York, we sought clarification. We spoke to members of Congress on both sides of the aisle, Democrats and Republicans, who agreed that VOLUNTARY activity was not intended to be covered under the FFCRA. We’re also still seeking an opinion from the federal Department of Labor to support that position. But as you might expect they’re a little slow with their response.
Where does that leave you as an employer? Obviously, if you have an employee that can work remotely after a vacation you should have them work remotely for those 14 days. For those that cannot work remotely, we encourage you to work with your team to find a resolution. That may include you making the choice to pay them for the quarantine as you’ll likely get paid back by the federal government under the FFCRA. However, if you choose not to take that approach, we believe you are well within your rights to deny them Paid Sick Leave.