The New York Department of Health (“DOH”) recently issued Interim Guidance for Quarantine Restrictions in response to Governor Cuomo’s Executive Order 205 – which required the Commissioner of Health to issue a travel advisory, effective June 25, 2020. The neighboring states of New Jersey and Connecticut also imposed similar orders.
All travelers, including New Yorkers, who traveled from “states with significant rates of COVID-19 transmission” and who do not meet the exceptions outlined below, are now required to quarantine for a 14-day period from the time of their last contact with such designated states.
Criteria for Determining the Designated States
The criteria to determine what states are considered to have “significant community spread” are if there is a positive test rate higher than 10 per 100,000 residents over a seven-day rolling average; or a testing positivity rate of higher than 10% over a seven-day rolling average.
The states that are currently deemed to have “significant community spread” are: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah. Exceptions to the Travel Advisory Quarantine
1. Limited Duration
Individuals who passed through the designated states for a limited duration (less than 24 hours) do not need to quarantine.
Examples of this exception are stopping at rest stops for vehicles, buses or trains, and lay-overs for air, bus or train travel.
2. First Responders and Essential Workers
If traveling Less than 12 Hours (i.e. delivering goods or awaiting layovers), the essential worker should avoid public spaces to limit exposure, monitor temperature and symptoms, wear a face covering, clean and disinfect workspaces, maintain social distance, and avoid contact with strangers, congregate settings, and extended periods in public.
If traveling less than 36 hours (i.e. stay overnight, delivering multiple goods in NY, or a longer flight layover), the essential worker should seek diagnostic testing for COVID-19 ASAP upon arrival to ensure they are not positive, and follow the same protocol as for those traveling less than 12 hours for a minimum of 14-days.
Long Term – traveling more than 36 hours (i.e. longer projects or employment obligations), the essential worker should follow the same protocol as above but should avoid contact with strangers, congregate settings, and extended periods in public for at least 7 days.
Who Pays Employees Lost Wages due to the Travel Advisory’s Quarantine Rules?
The plain language of the Executive Order and Interim Guidance on the travel advisory are silent on whether employers will be obligated to pay employees while in quarantine from traveling to one of the designated states.
I. Should Employers Follow the Quarantine Laws Already in Place to Determine Whether to Pay Employees who are Quarantined due to the Travel Advisory?
The New York State Paid Sick Leave Law (“PSLL”) provides for sick leave when an employee is subject to a “mandatory or precautionary governmental quarantine or isolation order due to COVID-19.” Under the PSLL:
Employers with 1-10 employees and $1,000,000 or less in net income in the previous tax year (Tier 1) must provide unpaid sick leave for the duration of the Quarantine Order;
Employers with 11-99 employees and employers with 1-10 employees and a net income greater than $1 million in the previous tax year (Tier 2) must provide at least 5 days of paid sick leave plus unpaid sick leave for the duration of the Quarantine Order; and
Employers with 100 or more employees, as well as all public employers (regardless of number of employees) (Tier 3) must provide at least 14 days of paid sick leave.
Under the Families First Coronavirus Response Act (FFCRA),if an employee takes paid sick leave because he or she is unable to work or telework because he or she was subject to a Federal, State, or local quarantine or isolation order related to COVID-19,or was advised by a health care provider to self-quarantine due to COVID-19concerns,then the employee will receive for each applicable hour the greater of their regular rate of pay,the federal minimum wage in effect under the FLSA, or the applicable State or local minimum wage.The employee is entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.
II. Should Employers Follow CDC Guidance for Travel to a Restricted Country to Determine Whether to Pay Employees who are Quarantined due to the State Travel Advisory? Guidance related to the PSLL provides an exception to paid leave if an employee is issued a Quarantine Order as a result of voluntarily traveling to a CDC specified country for personal reasons after March 18 and notice of the CDC travel restriction.
Arguably, the same exception should apply here if an employee voluntarily travels to a designated state for personal reasons and has to quarantine for 14-days.
Because the guidance is not clear, we recommend employers create an “interim” vacation policy to enable full disclosure of whether employees are traveling to the restricted states and to prohibit such travel if possible, for the health and welfare of fellow employees. It is likely additional guidance will be issued on these issues in the coming days/weeks.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773.
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This Legal Briefing is intended for general informational and educational purposes only and should