By Joseph S. Brown, Esq.
Since June, many employers with operations in New York adopted travel policies based on New York’s Travel Advisory List, which mandated a 14-day quarantine for individuals returning to NY after traveling to a state with significant community spread of COVID-19. On October 31st, NY Governor Cuomo announced the state would be scrapping the Travel Advisory List in favor of a testing-based approach that now allows a traveler to “test out” of the mandatory 14-day quarantine. Going forward, there will be no state quarantine list; there will be one rule that applies across the country. The new guidelines can be found here. Today, the New York State Department of Health updated its previous document entitled “Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel,” which provides additional guidance.
This alert summarizes what we know about new guidelines so far and the implications it may have for leave eligibility and employers’ travel policies and forms.
The New Guidelines
The new guidelines are effective Wednesday, November 4. Travelers from states that are contiguous with New York – Connecticut, Massachusetts, New Jersey, Pennsylvania, and Vermont – are exempt from the travel advisory, however, covered travelers must continue to fill out the Traveler Health Form. Essential workers will continue to be exempt as well.
If travelers choose not to get tested at all, they must remain quarantined for the 14-day period. But the new guidelines allow individuals to potentially shorten the length of the quarantine period if they test negative for COVID-19.
For any traveler to New York State from out of state, exempting the bordering states, the new guidelines for travelers to test-out of the mandatory 14-day quarantine are as follows:
For travelers who were in another state for more than 24 hours:
- Travelers must obtain a test within three days of departure from that state.
- The traveler must, upon arrival in New York, quarantine for three days.
- On day four of their quarantine, the traveler must obtain another COVID test. If both tests come back negative, the traveler may exit quarantine early upon receipt of the second negative diagnostic test.
For travelers who were in another state for less than 24 hours:
- The traveler does not need a test prior to their departure from the other state, and does not need to quarantine upon arrival in New York State.
- However, the traveler must fill out our traveler form upon entry into New York State, and take a COVID diagnostic test four days after their arrival in New York.
According to the new guidelines, local health departments will validate tests, if necessary, and if a test comes back positive, will issue isolation orders and initiate contact tracing. The local health department must make contact with the state the traveler came from, to ensure contact tracing proceeds there as well. All travelers must continue to fill out the traveler information form upon arrival into New York State to contribute to New York’s contact tracing program.
International travelers who return to New York from a country that the Centers for Centers for Disease Control and Prevention (CDC) has issued level two or three travel warnings – all but 31 counties in the world – remain subject to a mandatory 14-day quarantine.
COVID-19 Paid Sick Leave Eligibility
During any quarantine period mandated by the new guidelines, employees who are not able to work remotely may be eligible for leave during any period of quarantine under NY’s COVID-19 Paid Sick Leave Law or the federal Families First Coronavirus Response Act (FFCRA).
When the Travel Advisory was initially unveiled in June, Governor Cuomo issued an executive order providing that New York employees will forgo their paid sick leave benefits from New York's COVID-19 paid sick leave law if they voluntarily travel to a high risk state – i.e., any state that has a positive test rate higher than 10 per 100,000 residents, or higher than a 10 percent test positivity rate over a seven-day rolling average. This exception was consistent with the previous carveout for voluntary travel to foreign countries that were subject to a CDC travel notice. It is important to note that the employee must be provided with notice of this limitation prior to travel.
Unlike the NY COVID-19 Paid Sick Leave Law, the federal leave law – which applies to most employers with fewer than 500 employees – does not have a similar exemption. Among the qualifying reasons for taking FFCRA leave is a worker subject to “a Federal, State, or local quarantine or isolation order related to COVID-19.” New York’s travel restrictions appear to meet the definition of a quarantine or isolation order from a state government according to previous guidance from the U.S. Department of Labor.
Impact on Employer Travel Policies and Forms
In the wake of COVID-19, many NY businesses adopted travel policies addressing employee business and personal travel based on the Travel Advisory’s state quarantine list. As required by re-opening guidance, most businesses utilize screening forms which require employees to identify if they have traveled to a state with significant community spread of COVID-19. The new guidelines will require employers to modify existing policies and forms.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
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