Latest Update: New York State Governor Issues Executive Order Clarifying Employees’ Entitlement to Paid Sick Leave Under the New York COVID-19 Sick Leave Law When Quarantined Pursuant to the State’s Travel Advisory

As we reported in an earlier alert, on June 24, 2020, in response to increased rates of COVID-19 transmission in certain states within the United States, New York State Governor Andrew Cuomo issued Executive Order No. 205, requiring the New York State Commissioner of Health (“Commissioner”) to issue a travel advisory mandating that all travelers entering New York from states with a seven-day rolling average of positive COVID-19 tests in excess of 10% – or positive COVID-19 cases exceeding 10 per 100,000 residents (hereinafter, “restricted states”) – to quarantine for 14 days from the time of their last contact within a restricted state. When Executive Order No. 205 was issued, it was unclear whether an employee required to quarantine under the Commissioner’s travel advisory would be entitled during quarantine to paid leave under the New York COVID-19 Sick Leave Law (“NYSLL”).

On June 26, 2020, this issue was clarified by the issuance of Executive Order 202.45, modifying the NYSLL to provide that an employee who travels to a restricted state is ineligible for paid leave under the law if the travel was not undertaken for employment purposes or at the direction of the employer, and the employee was provided notice of the Commissioner’s travel advisory and the limitations of the law before traveling. This exemption to paid leave for travel to a restricted state is in addition to the NYSLL’s preexisting exclusion of paid leave for the same kind of travel to a foreign country for which the Centers for Disease Control and Prevention (CDC) has issued a level two or three travel health notice (“restricted country”), provided that an employee is also given similar notice before such travel begins. Accordingly, to avoid having to provide paid leave under the NYSLL to employees who are required to quarantine after returning from travel to a restricted state or a restricted country, employers should provide their employees with written notice that meets the requirements of the NYSLL for such leave to be unpaid. While the NYSLL allows employees to be denied paid leave during quarantine under the foregoing circumstances, employers should remember that under the NYSLL, such employees are nonetheless entitled during quarantine to use accrued paid leave and, where paid leave is unavailable, they are entitled to unpaid sick leave.

Although employees may be denied paid leave under the NYSLL during quarantine after travel to a restricted state or a restricted country as described above, employees who travel to such areas may nonetheless be entitled to paid leave during quarantine if their employer is subject to the federal Emergency Paid Sick Leave Act (EPSLA). Like the NYSLL, the EPSLA requires covered employers to provide paid leave to employees who cannot work due to a state or local order of quarantine or isolation, as well as such a federal order. However, unlike the NYSLL, the EPSLA contains no exemption based on an employee’s travel destination and reason for travel. Given that the Commissioner’s travel advisory was issued pursuant to an Executive Order and is mandatory, there is a high likelihood that it would be considered a state-issued order of quarantine under the EPSLA, thereby entitling employees who are employed by a covered employer, and who travel to a restricted state or a restricted country for any reason, to paid leave while in quarantine upon their return.

Additional information about the NYSLL and EPSLA may be obtained by reading our prior alert about those laws.

Additional Assistance

For further assistance, please contact a member of the Labor & Employment Practice Team, the Coronavirus (COVID-19) Response Team, or the Phillips Lytle attorney with whom you have a relationship.