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New York’s Travel Advisory: What It Means for Employers

By Joseph S. Brown, Esq.

Updated 7/10/20:

New York State continues to add states to the travel advisory due to the rapid increase in COVID-19 positive results in each.  If a person travels to any of the following, he or she must self-quarantine for 14 days upon return to New York:

  1. Alabama
  2. Arkansas
  3. Arizona
  4. California
  5. Delaware
  6. Florida
  7. Georgia
  8. Iowa
  9. Idaho
  10. Kansas
  11. Louisiana
  12. Mississippi 
  13. North Carolina
  14. Nevada
  15. Oklahoma
  16. South Carolina
  17. Tennessee
  18. Texas
  19. Utah

New York Governor Cuomo recently issued Executive Order 205, which requires certain individuals to quarantine for 14 days upon arriving in New York if they are traveling from states with significant community spread of COVID-19 (the “Travel Advisory”).  

Since that time, the NYS Department of Health published interim guidance (“Interim Guidance”) on the Travel Advisory and Governor Cuomo issued another Executive Order (202.45) clarifying that individuals who voluntarily travel to states with significant coronavirus spread will not be entitled to paid quarantine leave from work under New York State law when they return to New York.  This alert summarizes the impact these recent developments may have for New York employers.

New York’s Travel Advisory

New York’s Travel Advisory requires all travelers coming from states with significant rates of transmission of COVID-19 (“Designated States”) to quarantine for a 14-day period from the time of their last contact within such Designated States. New York joins New Jersey and Connecticut in the implementation of this travel advisory, which became effective on June 25, 2020. For more information on the travel advisory, click here.

States will be designated as having “significant community spread” if the state has either a positive test rate higher than 10 percent per 100,000 residents over a seven-day rolling average or a testing positivity rate of higher than 10 percent over a seven-day rolling average. 

Updated 6/30/20:

New York State has added 8 new states to the travel advisory due to the rapid increase in COVID-19 positive results in each.  If a person travels to any of the following, he or she must self-quarantine for 14 days upon return to New York:

  1. Alabama
  2. Arkansas
  3. Arizona
  4. California
  5. Florida
  6. Georgia
  7. Iowa
  8. Idaho
  9. Louisiana
  10. Mississippi
  11. North Carolina
  12. Nevada
  13. South Carolina
  14. Tennessee
  15. Texas
  16. Utah
     

The list of Designated States will be updated on a weekly basis and can be found on New York’s COVID-19 Travel Advisory Page.

Quarantine Requirements

The Travel Advisory applies to all New Yorkers and all visitors entering the state. 

The Interim Guidance states that the quarantine requirement does not apply to “any individual passing through designated states 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 travel, bus travel, or train travel.”

The Interim Guidance provides information on the requirements of quarantining and how to report an individual who fails to adhere to the quarantine requirements.  The Travel Advisory further cautions that individuals violating an order to quarantine can face penalties of up to $10,000.

Requirements for Essential Workers

The Guidance defines three types of “essential workers” who are exempt from the Travel Advisory:

  1. Any individual employed by an entity included on the Empire State Development (ESD) Essential Business list;
  2. Any individual who:
    1. Is employed as a health care worker, first responder, or within a nursing home, long-term care facility or congregate care setting, so long as that individual meets the COVID-19 testing criteria;
    2. An individual who is employed as an essential employee who directly interacts with the public while working. The Department of Health Protocol for COVID-19 Testing details the employees that fall into this category. You may find that protocol here
  3. Any other worker deemed as essential by the Commissioner of Health. 
     

Employers should be aware that Essential Workers will be subject to certain requirements depending on their duration in the Designated State and their intended duration of time in New York:

Short Term – for essential workers traveling to New York State for a period of less than 12 hours.

  • This includes instances such as an essential worker passing through New York, delivering goods, awaiting flight layovers, and other short duration activities.
  • Essential workers should stay in their vehicle and/or limit personal exposure by avoiding public spaces as much as possible.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces.
  •  Essential workers are required, to the extent possible, to avoid extended periods in public, contact with strangers, and large congregate settings.
     

Medium Term – for essential workers traveling to New York State for a period of less than 36 hours, requiring them to stay overnight.

  • This includes instances such as an essential worker delivering multiple goods in New York, awaiting longer flight layover, and other medium duration activities.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces.
  • Essential workers are required, to the extent possible, to avoid extended periods in public, contact with strangers, and large congregate settings.
     

Long Term – for essential workers traveling to New York State for a period of greater than 36 hours, requiring them to stay several days.

  • This includes instances such as an essential worker working on longer projects, fulfilling extended employment obligations, and other longer duration activities.
  • Essential workers should seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive.
  • Essential workers should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distancing, clean and disinfect workspaces for a minimum of 14 days.
  • Essential workers, to the extent possible, are required to avoid extended periods in public, contact with strangers, and large congregate settings for a period of, at least, 7 days.
     

Modification of New York State COVID-19 Leave Law

When the Travel Advisory was first announced by Governor Cuomo, many believed it constituted a “mandatory or precautionary order of quarantine or isolation” issued by the State of New York that could result in the employee being eligible for leave under the federal Families First Coronavirus Response Act (FFCRA) and New York’s COVID-19 Leave Law.

An Executive Order issued on late Friday clarified that an employee will “not be eligible for paid sick leave benefits” under the state's COVID-19 Paid Sick Leave Law if:

  1. The employee “voluntarily travels” to a state covered by the travel advisory after June 25, 2020 (the date the travel advisory went into effect); and
  2. The travel was not taken as part of the employee’s employment or at the direction of the employee’s employer.


The latest Executive Order brings the domestic Travel Advisory in line with the previous carveout for voluntary travel to foreign countries that were subject to a CDC travel notice. 

The employee must be provided notice of the Travel Advisory and notice of this limitation contained in New York’s COVID-19 Leave Law prior to travel.  In other words, a business should have a clear leave policy that provides employees with notice that they may not be eligible for this type of leave if the employee voluntarily travels to a Designated State.  This exception does not impact an employee’s right to take accrued leave provided by their employer, or unpaid leave for the duration of the quarantine period.

At this point, it remains unclear what influence New York’s Travel Advisory may have on the right to paid sick leave under the FFCRA. The Travel Advisory appears 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.  We will have to wait-and-see if the U.S. Department of Labor issues its own clarification like New York did in the recent executive order.

Employer Takeaways

New York businesses must become intimately familiar with the Travel Advisory and Interim Guidance to determine what, if any, impact out-of-state employee travel plans—whether for personal or business reasons—will have on business operations and finances moving forward. 

An employer must be up-to-speed on which states are added or removed from New York’s list of Designated States.  An employer may need to determine whether an employee can work remotely during the time they are subject to quarantine under the Travel Advisory as it can impact operations and what leave, if any, the employee is eligible to receive.      

For a business with essential workers, the employer will need to track which employees are deemed essential and the duration of an employee’s visit to a Designated State as well as monitor the employee’s compliance with any requirements imposed by the Interim Guidance.  Finally, employers should update their COVID-19 travel, remote work, and leave policies to reflect these significant changes to the way we make out-of-state travel plans in the months ahead.


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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Joseph S. Brown – [email protected]

Ann E. Evanko – [email protected]

Katherine L. Wood – [email protected]

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