The impact of COVID-19 on workplaces continues at a quick pace. Detailed below is information on recent travel advisories and quarantine guidelines for people returning from various states dealing with increased spread of COVID-19.
TRAVEL RESTRICTION ADVISORIES:
Effective June 25, 2020, New York and New Jersey issued travel advisories for people returning from travel within states that have a significant degree of community-wide spread of COVID-19. (Connecticut also issued a travel advisory and its guidance can be found HERE.) As of June 30, 2020, the following states meet the specified criteria for a travel advisory (they have either a positive test rate higher than 10 per 100,000 residents or a testing positivity rate higher than 10%, each over a seven-day rolling average):
- North Carolina
- South Carolina
These travel advisories and self-quarantine orders raise new questions for employers, which are highlighted below.
What Do the Travel Advisories Require and is Self-Quarantine Mandatory?
New Jersey: According to the New Jersey Department of Health’s guidance, available HERE, individuals traveling or returning to New Jersey from the above states are “advised to self-quarantine for 14 days.” This includes travel by any form of transportation. Further, the guidance provides that “self-quarantine is voluntary, but compliance is expected.”
New York: New York’s travel advisory, on the other hand, appears to require self-quarantine. The New York Department of Health’s Interim Guidance notes that certain travelers entering New York who recently traveled to the above states “will be required to quarantine for a period of 14 days” and includes detailed “requirements to safely quarantine.” However, the guidance explains that those travelling within the designated states for a period of less than 24 hours (e.g., layovers and time at rest stops, etc.) are exempt from the self-quarantine requirement.
What if an Employer Requires the Employee to Test Negative Upon Return?
New Jersey: The NJ Department of Health instructs that an employee’s receipt of a negative test result upon return does not relieve him/her of the need to self-quarantine (but, again, the self-quarantine appears voluntary in New Jersey).
New York: The state’s guidance is silent on this issue.
Are There Exemptions from the Self-Quarantine Requirements?
New Jersey: The New Jersey Department of Health’s guidance states that individuals who are “traveling to New Jersey from impacted states for business” are exempt, though such individuals are encouraged to postpone such travel to the extent possible.
New York: As mentioned above, New York’s guidance explains that those travelling within the designated states for a period of less than 24 hours are exempt from the self-quarantine requirement. In addition, the New York travel advisory contains an exemption for “essential workers”, which is defined to include:
- 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 their 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 DOH Protocol for COVID-19 Testing, issued May 31, 2020;
- or any other worker deemed such by the Commissioner of Health.
For anyone who falls into these categories, New York’s guidance provides different recommendations depending upon how long the individuals were in the designated states.
What is the Interplay Between These Travel Advisories and Applicable Leave Laws?
Employers may ask whether employees who cannot work due to this travel advisory could be entitled to leave under any applicable laws, such as the Families First Coronavirus Response Act (“FFCRA”), the New York Emergency COVID Paid Sick Leave Law, the New Jersey Family Leave Act, and/or the states’ respective paid sick leave laws. Unfortunately, the available guidance is generally unclear on these issues.
Neither New York nor New Jersey specified whether the self-quarantine could trigger an employee’s entitlement to paid leave under the FFCRA. (A link to a previous e-alert on FFCRA can be found HERE.) NOTE: Please visit our Resources page on nfclegal.com, found HERE, for all our FFCRA eAlerts.
New Jersey: While New Jersey does not address FFCRA coverage, the NJ Department of Health’s guidance does state that employees can “possibly” use paid sick leave benefits and/or job-protected leave under the New Jersey Family Leave Act to cover the self-quarantine period.
New York: New York has more directly clarified the interplay between the travel restriction and the State’s COVID-19 Paid Sick Leave Law, which requires most NY employers to provide paid time off for certain employees who are subject to a mandatory or precautionary order of quarantine or isolation issued in various circumstances. On June 26, 2020, Governor Cuomo issued Executive Order 202.45, which provides that employers need not provide paid leave under the COVID-19 Paid Sick Leave Law to employees who travel to designated “high risk” states on personal travel where the travel was not taken as part of the employee’s job or at the employer’s direction, and if the employee was provided notice of the travel restriction and the limitations of the sick leave law prior to such travel.
Additional guidance may be provided in the near future. In the meantime, employers should carefully monitor the list of “high risk” states and consult with their employment counsel to formulate a plan for notifying employees of pertinent restrictions before any travel and handling employees’ return to work afterwards.
If you have any questions relating to this eAlert, please reach out to the NFC Attorney with whom you typically work, or call us directly. We are happy to assist with this or any COVID-19 related issue.