FAQs: Employer Obligations Following the Recent Spike in Omicron/COVID-19 Cases in New York City

The NYC Hospitality Alliance has spoken with countless members about the impact on their business due to the increase in COVID-19 cases. We are in regular contact with government officials, advocating for our industry. We will be sure to share any updates as they become available. In the meantime, please carefully review this alert from Fox Rothschild LLP.

In light of the recent spike of COVID-19 cases in New York City, and particularly omicron variant cases, we have been fielding a lot of questions from employers about their obligations to their employees. What do they need to offer in terms of leave when employees test positive, who must they inform and what are the quarantine requirements?

To help guide your decision making, we have prepared this memo to address some of the most frequently asked questions.

COVID-19 Cases In the Workplace

Q: What Should Employers Do If an Employee Tests Positive for COVID-19?

A: You must instruct the employee that they are required to quarantine for 10 days. (Day 1 is the first full day after symptoms developed. If the employee does not develop symptoms, Day 1 is the first full day after the employee received a positive test.)

Q: When Can Employees Return to Work if They Tested Positive for COVID-19?

A: Asymptomatic employees can return to work 10 days after the date of their positive test. A negative test is not required to return to work.

Symptomatic employees can only return to work after 10 days, provided that after the 10th day it has been 24 hours since the employee last had a fever.

Q: Who Do Employers Need to Inform About a Positive COVID-19 Case at the Business?

A: You need to inform all employees who were in close contact with the COVID-19 positive employee (i.e., anyone who had direct physical contact or was within 6 feet for 15 minutes or more over a 24 hour period. (This is cumulative, so 3 5-minute exposures in 24 hours is considered a close contact.)

Do not identify the names of who tested positive to any other employee, simply state that “an employee” tested positive. If employees start guessing or gossiping about the identity, try to stop those conversations to protect employee privacy.

There is no requirement to inform employees if they were not in close contact with the infected individual, but the business does need to inform the State and City Departments of Health. The City has created a website to report cases.

Q: Who Needs to Quarantine After a Close Contact?

A: If employees had a close contact but are fully vaccinated and do not have symptoms, they can continue to work. They should wear a mask for 14 days or until they receive a negative test (which should be taken 3-5 days after the exposure). If the employees want to take a test, they may do so, but you do not need to pay for the test. If they test positive, they need to follow the quarantine and return-to-work process set forth above.

If employees had a close contact and have symptoms or test positive, or if they are not fully vaccinated, they need to quarantine for 10 days and follow the quarantine and return-to-work process set forth above.

Q: Are There Cleaning or Sterilization Requirements?

A: The CDC recommends that if someone who tested positive for COVID-19 has been in the workplace within the last 24 hours, you should close off the areas used by the individual, wait several hours and then clean and disinfect the spaces that the individual occupied. The cleaning and disinfecting should be done by management or an outside company.

Leave Entitlements and Obligations

Q: If an Employee is Out of Work Because They Are Required to Quarantine, Are They Entitled to Any Leave?

A: Employees who are required to quarantine because they tested positive for COVID-19 or were unvaccinated and had a close contact with an infected individual are entitled to up to 14 days of paid COVID-19 sick leave* (based on employee headcount and annual revenue as of January 1, 2020, employers with 1-10 employees with a net annual income of over $1 million and employers with 11-99 employees must provide 5 days, while employers with 100+ employees must provide 14 days). This leave is in addition to traditional sick leave.

*Employees using COVID-19 sick leave must be paid the amount that the employee would have otherwise received had they continued to work as scheduled. (You do not need to include tips in this calculation, but tipped employees must be paid at the rate of at least $15.00 per hour.) Employees who work a fixed schedule or are paid a salary must continue to receive pay for the applicable period. For hourly, part-time, commissioned salespeople and other employees who are not paid a fixed wage, you must determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate.

Q: Are Employees Entitled to Any Leave if the Employer Requires That They Stay Home and Get Tested After a Close Contact?

A: If you insist employees get tested due to a close contact and mandate an employee cannot come into work until the employee produces a negative test, then you must pay the employee’s regular rate of pay until the employee tests negative and can return to work*. If the employee tests positive, the employee is then entitled to up to 14 days of paid COVID-19 sick leave.

*If you require that an employee who had a close contact get tested, you must pay for the test.

Q: Are Employees Entitled to Any Leave if They Voluntarily Stay Home and Get Tested?

A: If you do not require an employee to stay home, either because they had a close contact but are fully vaccinated and do not have symptoms or because they did not have a close contact, you do not need to pay them for the time they are out of work. They can, however, use their accrued sick leave while they are out waiting for the results of the test. Additionally, if the employee stays home and takes a test voluntarily, you do not need to pay for that test. However, if the employee tests positive, you may request proof of a positive test and the employee is then entitled to up to 14 days of paid COVID-19 sick leave.

Q: Are Employees Entitled to Any Leave to Get Booster Shots?

A: Until December 31, 2022, all employees are entitled to a sufficient period of time, not to exceed four (4) hours, for each COVID-19 vaccine injection, which includes boosters. Employees must be paid at their regular rate of pay (which for tipped employees is $15.00 per hour) for each leave of absence, up to a maximum of four hours. If an employee needs more than four hours off from work for an injection, they are permitted to use accrued, but unused, sick leave or paid time off. You can request proof of vaccination and a record of the vaccination appointment.

Q: What Do I Do If My Employee Informs Me That They Tested Positive Using a Home Test Kit?

A:You should require the employee to confirm the home test kit result with a PCR test. The employer will have to pay for the PCR test. If the PCR test is positive, the employer must pay COVID pay from the time the employee informed the employer about the home test kit result. If the PCR test is negative, the employee can return to work immediately (barring any isolation requirements detailed above).

Ensuring a Safe Workplace

Q: Can I Require Employees and Guests to Wear Masks?

A:Yes. It is recommended that all employees wear masks and, for restaurants, that you require all guests wear masks when they are not eating and drinking.

Although all restaurants must require guests to be fully vaccinated to dine indoors, New York State has implemented a mask mandate through at least January 15, 2022 for all indoor public places unless the business requires proof of vaccination as a condition of entry. Therefore, if you do not have a vaccine mandate in place (which you should at this point), you must require that all employees and guests wear masks, except when eating and drinking.

Q: What if an Employee or Multiple Employees Refuse to Come to Work Because They Are Afraid of COVID-19?

A: It is advisable not to terminate an employee if they refuse to work because of fears related to  COVID-19. Employee who express a fear about the safety of their workplace are likely protected under the National Labor Relations Act (if two or more employees express such a fear, it could be considered a “protected concerted activity”), the New York HERO Act and other relevant laws. You should engage with your employees, find out what their concerns are and see if those concerns can be addressed through additional safety measures. If you have addressed the concerns and the employee or employees still refuse to work, you should consider putting them on an unpaid leave of absence until they feel comfortable returning to work. Additionally, you should speak to legal counsel prior to any decision to terminate or place an employee on unpaid leave related to a safety concern.

For more information about this alert, please contact Carolyn D. Richmond at 212.878.7983 or crichmond@foxrothschild.com, Glenn S. Grindlinger at 212.905.2305 or ggrindlinger@foxrothschild.com, Matthew C. Berger at 646.601.7658 or mberger@foxrothschild.com, or any other member of the firm’s Labor & Employment Department.