On Sunday, the DOH issued an advisory titled “Revised Protocols for Personnel in Healthcare and Other Direct Care Settings” that explains how covered entities must handle employees who have been exposed to a confirmed case of COVID-19 and are asymptomatic and certain travelers returning to New York. The Revised Protocols appear limited to these scenarios, and that the pre-existing DOH guidelines continue to apply to healthcare employees in other situations (e.g., where the employee has been exposed and is symptomatic).

The Revised Guidelines state that they apply to employees who are asymptomatic and who “have been in contact with (i.e., exposed to) a confirmed or suspected case of COVID-19 within the past 10 days.” For such employees, they may return to work “after a 10 day quarantine without testing if no symptoms have been reported during the quarantine period, providing the following conditions are met:”

  1. Employee must continue daily symptom monitoring through Day 14;
  2. Employee must be counseled to continue strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene and the use of appropriate face coverings.
  3. Employee must be advised that if any symptoms develop, they should immediately self-isolate and contact the local public health authority or their healthcare provider to report this change in clinical status and determine if they should seek testing.

With respect to employees who had traveled and return from a non-contiguous state or territory that is subject to a CDC Level 2 or higher COVID-19 risk assessment level, or for which the risk assessment level has not been designated by the CDC, then the healthcare personnel must adhere to the NYS November 3 travel guidance and seek diagnostic testing on Day 4.

In reference to paid sick leave for employees who are subject to the foregoing quarantine obligations, the Revised Guidelines state that such employees “may qualify for paid sick leave benefits, and their employers can provide them with a letter confirming this, which can be used to demonstrate eligibility for the benefit. However, New York employees will forgo their paid sick leave benefits from New York’s COVID-19 paid sick leave law if they engage in travel not directed by their employer to a country designated as having a Level 2 or higher health notice by the CDC or states other than those contiguous to New York from the time of return to New York until the end of the required period of quarantine or isolation.”

The guidance does not explain what type of proof employers may request to confirm that an employee has been “exposed to” a COVID positive case. The COVID paid sick leave law continues to state that employees must produce an order of a local department of health or a medical order directing them into quarantine in order to receive paid COVID sick leave. Further, nothing in the Revised Guidelines prohibits employers from seeing proof that an employee is required to quarantine for 10 days before being required to pay the employee for such quarantine.

It is not clear whether the Revised Protocols apply to CDPAP. The announcement did not list fiscal intermediary owners or administrators as one of the intended recipients of the Revised Protocols. We’re seeking further clarification on this question from the DOH.