New York Governor Andrew Cuomo has announced new guidelines allowing out-of-state travelers to New York to “test out” of the state’s mandatory 14-day quarantine. Travelers from states that border New York will continue to be exempt from the travel advisory; however, covered travelers must continue to fill out the Traveler Health Form. The new protocol is effective November 4, 2020.
New York’s travel advisory has a tortured history. It became effective on 12:01am on Thursday June 25, 2020 through Executive Order No. 205. EO 205 was a part of a joint plan with Connecticut and New Jersey indicating that visitors from any state with a positive test rate higher than 10 per 100,000 residents (or higher than a 10 percent positivity rate), over a seven day rolling average, would be required to quarantine for a period of 14 days.
The Department of Health (DOH) initially issued interim guidance on June 24, 2020 (later updated on October 8, 2020 and November 3, 2020), interpreting the travel advisory. The current guidance continues to include a permissive exemption to a quarantine for “essential workers” and “first responders” and instead requires such employees to follow specific protocol depending on whether the employee is traveling to New York for 12 hours or less, less than 36 hours, or more than 36 hours.
In typical New York fashion, the exemptions for “essential workers” and “first responders” included a tiered system of requirements for these employees to follow depending on whether they were traveling to New York State for less than 12 hours, for less than 36 hours, or for more than 36 hours. Due to the exemption these employees do not need to quarantine for 14 days upon visiting, but instead need to follow the requirements listed in the DOH guidance depending on how long they are staying in New York. Notably, the exemptions are “permitted,” meaning that employers could conceivably decide not to apply the exemption and require that the essential employee or first responder quarantine for 14 days upon returning to New York from a restricted state.
Over the last few months a majority of U.S. states exceeded the threshold and were added to the restricted state list, which was updated weekly. A few weeks ago some of New York’s border states met the criteria to be added to the restricted state list. In response, Gov. Cuomo indicated “there are just too many interchanges, interconnections, and people who live in one place and work in the other” to add these states to the list. Gov. Cuomo went on to say “to the extent travel between the states is not essential, it should be avoided”.
Executive Order 205.2 released on October 31, 2020 eliminates the list entirely, and allows for travelers to New York State (except travelers from bordering states) to “test out” of the 14-day quarantine. Different rules apply depending on how long the traveler is in the restricted state.
For travelers who are in another state for more than 24 hours:
If both tests come back negative, the traveler may exit quarantine early upon receipt of the second negative diagnostic test, instead of remaining in quarantine for the full 14 days.
For travelers who were in another state for less than 24 hours:
Penalties for violations will be deemed a violation of the Public Health law and could result in a civil penalty of up to $10,000.
An obvious expected effect of the travel advisory when it was first announced was that there would be an increase in individuals required to quarantine or isolate, which would possibly trigger state and/or federal leave laws. In recognition of this consequence, Gov. Cuomo signed Executive Order 202.45, which, among other things, modified the New York Quarantine Leave Law enacted on March 18, 2020 to exempt employees that voluntarily traveled to a restricted state. (This exemption was in addition to the exemption already written into the law for employees traveling to a country for which the Centers for Disease Control and Prevention has a Level Two or Three travel health notice.)
Notwithstanding the exemption relating to New York Quarantine Leave Law, the exemption does not apply to federal leave law. Specifically, employees that work for employers covered by the Families First Coronavirus Responses Act (FFCRA) are still likely eligible for Emergency Paid Sick Leave Law (E-PSLA) despite EO 202.45, given that one of the six triggering circumstances of E-PSLA is if the employee is subject to federal, state, or local quarantine or isolation orders relating to COVID-19. (It is important to point out that while at first glance those employees would seem to be entitled to E-PSLA, they would not be if they are able to telework during the quarantine period.)
Frustrated employers may be tempted to try to escape the complications of the travel advisory altogether by prohibiting employees from traveling outside New York at all. Those employers should heed caution given that such a directive could possibly violate New York Labor Law § 201-d, which, among other things, prohibits employers from penalizing an employee for engaging in lawful “recreational activities” outside work. Employers in the public sector may also face constitutional issues.
In theory, New York’s allowance for “testing out” of quarantine could reduce the amount of time that certain employees need to quarantine. However, a careful reading of EO 205.2 reveals that the guidance provides a possible path out of quarantine, but that it is not mandated. Accordingly, employers may encounter a situation where an employee fails to follow the testing protocol and opts to quarantine in order to receive a larger amount of E-PLSA leave. This scenario is conceivable given that the holiday season is right around the corner, when travel is at its highest. Moreover, employees that have not already used E-PSLA leave may be looking to use it before the FFCRA sunset date on December 31, 2020.
There is no shortage of thorny issues for employers to navigate in this area. We encourage employers to seek legal counsel when attempting to address these complicated employee issues.
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