OH MY! Omicron is Spreading Fast – FAQs on How to Handle

Dear HL Clients and Friends,

It has become apparent over the past few days that COVID is back and the Omicron variant is quickly spreading. We are being barraged with reports of restaurant and bar staff members testing positive and there is a lot of uncertainty and confusion about what you should do as a business owner.

Here’s what you need to know right now:

One of my staff members has tested positive for COVID-19. What do I do next?

    1. Alert any close contacts of the positive test while keeping the identity of the sick employee confidential. Under no circumstances can you reveal the identity of the sick person.
      1. A close contact is defined as anyone who was who has been within 6 feet for at least 10 minutes over a 24-hour period of someone who has COVID-19.
    2. Report the positive case and close contacts to the NYC Track and Trace Corps using the online form: https://nyc-prd.redcapcloud.com/survey.jsp?code=0yiapA9YCekebdd4.
    3. Deep clean when the business is next closed and take steps to reduce the spread of COVID: masks, social distancing, and limiting common area capacities.

Who needs to quarantine? Must close contacts isolate?

  1. Employees who test positive must quarantine for at least ten days either from the onset of their symptoms or from the date of their positive test if they are asymptomatic.
  2. Close contacts who do not have symptoms and are fully vaccinated do NOT have to isolate so long as they wear a mask at work.
  3. Close contacts who show symptoms of COVID, whether they are fully vaccinated or not, should self-isolate and get tested.

Should I make everyone get tested? Just to be safe?

You can – but you must either supply the tests or cover the cost of testing. There is no legal or regulatory requirement for close contacts to get tested. New York City and The CDC do recommend testing, but whether or not you require it of your employees is up to you.

Do I have an outbreak on my hands?

An outbreak is defined as two or more cases of laboratory confirmed COVID-19 infections which are linked by time, place or person. This is so because early data shows that one person infected with the Omicron variant is likely to infect two to four additional people. If you have two or more positive cases at your business, please reach out to us so that we can help you implement a strategy.

Will I be forced to close?

No, but as a practical effect of the City doing tracing or all of your key employees (the entire BOH, perhaps??) testing positive, you may effectively have no staff and close as a matter of course.

What are my financial obligations to quarantined or isolated employees?

Separate and apart from NYC’s Safe and Sick Leave, New York State’s COVID Sick Leave may be used three times and there is no waiting period before an employee is eligible. COVID Sick Leave is triggered by positive test results, government issued orders of quarantine, and children with positive test results.

This chart provides a breakdown of how often an employee can use COVID Sick Leave, and for what, in the space of a calendar year:

 

LEAVE ONE LEAVE TWO LEAVE THREE
Self-Quarantine – mandatory or precautionary Self-Quarantine – positive test Self-Quarantine – positive test
Self-Quarantine – mandatory or precautionary Self-Quarantine – positive test Child is Quarantined

 

Of note: quarantine as a result of travel does not trigger COVID Sick Leave and employees who can work from home during their quarantine are not eligible.

How much do I have to pay?

  • If your business had 1-10 employees as of 1/1/20 and a net income of less than 1 million in 2019, you do not need to provide paid COVID leave, but should direct employees to New York State Paid Family Leave for the duration of their quarantine(s).
  • If your business had 11-99 employees as of 1/1/20, OR a net income of over 1 million in 2019, then you must provide five (5) calendar days of COVID sick pay. The amount paid for those five (5) days is based on an average of what the employee would have made if they’d worked during that five-day period.
  • If your business had 99+ employees as of 1/1/20, you need to provide 14 calendar days of paid COVID leave, which basically comes to 10 days for those who work an average of five (5) days per week.
  • For hourly, part-time, and tipped employees (think: non-exempt employees), employers should determine the employee’s COVID Sick Leave pay by looking at a representative period of time to set the employee’s average daily pay rate. The number of paid days is calendar days, and the pay required should represent the amount of money that the employee would have otherwise received for the five or 14-day period. Reach out to us to help calculate this.
  • We have received reports from clients that their payroll providers have never heard of New York COVID Sick Leave. It’s true that the FEDERAL COVID Sick Leave is no longer in place, but New York State’s COVID Sick Leave remains in effect.

What if I decide to close my business to ride out an outbreak?

We have had clients do this and it’s a reasonable response, and in certain circumstances, closure may allow you to avoid paying COVID Sick Leave. If you decide to go this route, please reach out to us to discuss the pros and cons.

Where can I get more information?

Here is a link to New York’s COVID Sick Leave and PFL guidance, which is clarifying: https://paidfamilyleave.ny.gov/new-york-paid-family-leave-covid-19-faqs.

Here is a link to NYC’s COVID in the Workplace guidance, a simplified version of which has been reproduced in this newsletter: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/businesses/covid-19-reopening-cases-workplace.pdf

For the sake of clarity and out of an abundance of caution, we have chosen to eschew NYC’s “close contact during the infectious period” guidance. Our industry exists in close-quarters and there’s too much at stake to engage in finicky mathematics regarding contagiousness. Of course, you are MORE than welcome to be draconian about it and follow the City’s guidance to the letter. The advice here goes above and beyond what the City recommends.

What should I do next?

Pay attention, stay-tuned, and ask questions. The only certainty over the past 18 months has been change: in policy, in guidance, and in the virus itself. We expect more of the same.

Please contact Lee N. Jacobs at lee@helbraunlevey.com or Chloe Brownstein at chloe.brownstein@helbruanlevey.com with any questions.

We are here for you, dear friends, as we head once more unto the breach.

Lee and Chloe

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