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 (“EO”), requiring the New York State Commissioner of Health (“Commissioner”) to issue a travel advisory requiring all travelers entering New York from states with significant rates of transmission of COVID‑19 (hereinafter, “restricted states”) to quarantine for 14 days from the time of their last contact within a designated state. This action was taken in conjunction with the neighboring states of New Jersey and Connecticut. As directed by the EO, the Commissioner issued Interim Guidance effective June 25, 2020 requiring, with certain exemptions, that all persons entering New York from travel to a restricted state quarantine themselves upon entering New York for 14 days from the last travel within a restricted state. As a result, both New York-based employees who travel to a restricted state and non-New York-based employees who travel to New York from a restricted state will be subject to quarantine upon entering New York, unless an exemption applies. Therefore, employers should understand how the quarantine requirement will affect employee business and personal travel, as well as the impact that may have on their operations. (Revised link November 2020: NYS COVID-19 Travel Advisory)
Which States Qualify as “Restricted States”?
As of the publication of this alert, the following states meet the criteria requiring that persons entering New York after traveling to them be quarantined:
- North Carolina
- South Carolina
States may be removed or added to the list of restricted states depending on whether they meet or no longer meet the qualifying criteria – 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.
The quarantine requirements do not apply to any individual passing through a restricted state for a limited duration (i.e., less than 24 hours) through the course of travel. Examples of such brief passage include, but are not limited to: stopping at rest stops for vehicles, buses and/or trains; or layovers for air, bus or train travel.
Exemptions for Essential Workers
The following three exemptions to the quarantine requirement are permitted for essential workers based on the intended duration of time in New York:
An “essential worker” is:
- Any individual employed by an entity included on the Empire State Development (ESD) Essential Business list;
- Any individual who meets the COVID‑19 testing criteria, pursuant to his or her status as either an individual who is employed as a health care worker, first responder or in any position within a nursing home, long-term care facility or other congregate care setting; or an individual who is employed as an essential employee who directly interacts with the public while working, pursuant to New York State Department of Health COVID‑19 Testing protocol issued May 31, 2020; or
- Any other worker deemed such by the Commissioner.
The EO provides that violation of a quarantine or isolation order issued to an individual by the New York State Department of Health or a local health department pursuant to the Commissioner’s travel advisory may be enforced pursuant to Article 21 of the New York Public Health Law, and that noncompliance with such an order may subject a person to a civil penalty of up to $10,000.
Application of the Emergency Paid Sick Leave Act and New York COVID‑19 Sick Leave Law
Employers should be aware that employees who quarantine upon entering New York after travel to a restricted state may be entitled to paid leave during the quarantine period under the federal Emergency Paid Sick Leave Act (EPSLA) and/or New York COVID‑19 Sick Leave Law. Both laws require covered employers to provide paid leave to employees who are required to quarantine pursuant to a state-issued COVID‑19 quarantine order. As the EO directs the Commissioner to issue a travel advisory requiring persons traveling from a restricted state to quarantine, a court might find that the EO and the Commissioner’s travel advisory constitute a state-issued quarantine order under both laws. Employers considering whether to pay employees under the EPSLA and/or New York COVID‑19 Sick Leave Law should seek guidance from their labor and employment counsel. (More information about the EPSLA and New York COVID‑19 Sick Leave Law may be obtained by reading Phillips Lytle’s earlier alert on those laws.)