In response to increased rates of COVID-19 transmission in certain states across the United States, and to protect New York’s successful containment of COVID-19, the state has joined with New Jersey and Connecticut in issuing a travel advisory for anyone returning from travel to states that have a significant degree of community-wide spread of COVID-19.
Per Governor Cuomo’s Executive Order (EO) 205, issued June 25, 2020, the restricted states are determined based upon a seven-day rolling average of positive tests in excess of 10%, or number of positive cases exceeding 10 per 100,000 residents.
If an individual has traveled from within one of the designated states with significant community spread, they must quarantine when they enter New York for 14 days from the last travel within such designated state, provided on the date they enter into New York State that such state met the criteria for requiring such quarantine.
The requirements of the travel advisory do 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 lay-overs for air travel, bus travel or train travel.
Exceptions to the travel advisory are also permitted for essential workers and are limited based on the duration of time in designated states, as well as the intended duration of time in New York.
Individuals may be subject to penalties for violating the quarantine requirement.
Below is additional information available from the state:
- COVID-19 Travel Advisory
- DOH FAQ
- Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel
Naturally, this poses a challenge for employers when employees travel for personal reasons and then need additional time upon their return for self-quarantine. The question becomes, “Are employees who voluntarily travel to a restricted state or internationally eligible for FFCRA/Emergency Paid Sick Leave (EPSL) or NY COVID-19 Paid Sick Leave, for the period of quarantine?” When the order was first announced, there was little clarity on this matter.
On June 26, Governor Cuomo issued an EO indicating an employee who engages in non-work, voluntary travel to one of the restricted states, is ineligible for NY COVID-19 Paid Sick Leave Benefits. The NY COVID-19 Paid Sick Leave law also has a limited exception for travel outside the country under certain circumstances. It is important to note that this provision does not address the impact of EPSL obligations and the FFCRA guidance published by the US DOL doesn’t specifically address the issue.
However, the US DOL FFCRA FAQs (Question 87) addresses what’s considered a quarantine or isolation order providing eligibility for EPSL. Several attorneys have opined that it appears an employee who can’t work because they are subject to the New York Travel Advisory Executive Order requiring that they quarantine would qualify for FFCRA/EPSL because this is a government “order” and individuals are subject to penalty for failure to comply. Due to the lack of clarity, employers may wish to seek guidance from their own legal counsel prior to denying EPSL to an eligible employee in this situation as it may be a violation of the Fair Labor Standards Act (FLSA) and/or result in private legal claims.
Employers are encouraged to review their travel and leave policies and update them to include language regarding personal travel to high risk locations which may result in a mandatory 14-day quarantine during which time an employee would not be permitted to come to the work site. Employers may also need to decide if work from home arrangements would be feasible. In cases where an employee has exhausted FFCRA/EPSL, unpaid leave may be offered, and employees may be permitted to use any company-provided paid time off.
*Because the restricted states list is based on a calculation, it is subject to change, so employers should check the site regularly as the pandemic continues.
HR Works Can Help
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