On June 24, 2020, in response to the ongoing risk posed by a resurgence of COVID-19 infections in some states, New York Governor Andrew Cuomo issued Executive Order (EO) 205 directing the New York State Department of Health (NYSDOH) to issue a travel advisory for all persons entering New York from states with significant rates of transmission of COVID-19. The travel advisory became effective at 12:01 a.m. on June 25, 2020.
All travelers entering New York who have recently traveled within a state with either (i) a positive test rate higher than 10 per 100,000 residents over a 7-day rolling average or (ii) a positive test rate of higher than 10 percent over a 7-day rolling average will be required to quarantine for a period of 14 days, with the exception of essential workers, consistent with previously-issued NYSDOH regulations for quarantine. EO 205 does not apply to any individual passing through a designated state for a limited duration (less than 24 hours through the course of travel), such as stopping at highway rest stops or layovers at airports.
Any person who has traveled to New York from within one of the designated states must quarantine upon entering New York, provided that, on the date the individual entered New York, such other state met the criteria for quarantine. An analysis of the COVID-19 metrics from other states will be conducted weekly by the NYSDOH, and designated states will be posted on the NYSDOH’s website. As of June 30, 2020, the following states meet the criteria for required quarantine: Alabama, Arkansas, Arizona, California, Florida, Georgia, Iowa, Idaho, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Tennessee, Texas, and Utah.
Essential workers who have traveled to a designated state are not required to quarantine but are subject to certain restrictions. The travel advisory defines an “essential worker” as “(1) any individual employed by an entity included on the Empire State Development (ESD) Essential Business list; or (2) 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 (3) any other worker deemed such by the Commissioner of Health.” The restrictions upon essential workers depend on the length of the worker’s stay in New York, as follows:
Short-term: The travel advisory defines “short term” as “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.” The guidance mandates that such individuals:
- “should stay in their vehicle and/or limit personal exposure by avoiding public spaces as much as possible”;
- “should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces”; and
- “are required, to the extent possible, to avoid extended periods in public, contact with strangers, and large congregate settings.”
Medium-term: The travel advisory defines “medium term” as “essential workers traveling to New York State for a period of [more than 12 but] 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.” The guidance mandates that such individuals:
- “should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces”; and
- “are required, to the extent possible, to avoid extended periods in public, contact with strangers, and large congregate settings.”
Long-term: The travel advisory defines “long term” as “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,” and presumably includes most New York State residents returning home from trips to designated states. The guidance mandates that such individuals:
- “should seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive”;
- “should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distancing, [and] clean and disinfect workspaces for a minimum of 14 days”; and
- “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.”
In addition, the travel advisory states that “[e]ssential workers and their employers are expected to comply with previously issued DOH guidance regarding return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.”
Under EO 205, “[a]ny violation of a quarantine or isolation order issued to an individual pursuant to the Commissioner of the Department of Health’s travel advisory by a local department of health or state department of health may be enforced pursuant to article 21 of the public health law, and non-compliance may additionally be deemed a violation pursuant to section 12 of the public health law subject to a civil penalty of up to $10,000.”
Ineligibility for New York State Paid Quarantine Leave Benefits
As we previously reported, on March 18, 2020, New York enacted an emergency law requiring most employers to provide paid sick leave to employees who are subject to mandatory or precautionary orders of quarantine or isolation due to COVID-19. The NYSDOH’s travel advisory appears to be a precautionary order of quarantine within the meaning of the emergency law, but New Yorkers who are subject to quarantine because of personal travel to a designated state will not be eligible for paid leave under the law. On June 26, 2020, Governor Cuomo issued Executive Order 202.45 modifying the quarantine leave law to exclude from its pay provisions any employee who, after June 25, 2020, (i) voluntarily travels to a state which NYSDOH has designated as satisfying the positive test rates outlined in the travel advisory; and (ii) such travel “was not taken as part of the employee’s employment or at the direction of the employee’s employer.” These employees are eligible to use accrued leave provided by the employer or unpaid sick leave during a quarantine due to such travel.
Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.
