In a joint press conference on June 24, New York Governor Andrew Cuomo, New Jersey Governor Phil Murphy, and Connecticut Governor Ned Lamont announced a coordinated effort to protect the tristate area from community spread of the coronavirus (COVID-19) by implementing a travel quarantine on travelers from states with a high rate of COVID-19 cases based on specified criteria. Employers should review their paid sick leave and travel policies.
Effective June 25, 2020, all travelers entering New York, Connecticut, or New Jersey from a state with either (1) a positive coronavirus test rate higher than 10 cases per 100,000 residents over a seven-day rolling average or (2) a 10% or higher COVID-19 test positivity rate over a seven-day rolling average will be required to quarantine in the state for a period of 14 days. See New York Executive Order No. 202.205 and Connecticut Executive Order No. 7BBB. New Jersey has not published its executive order implementing the quarantine restriction yet, but it has published a frequently asked questions page.
As of June 29, the states covered by the quarantine requirement are Alabama, Arkansas, Arizona, California, Florida, Georgia, Iowa, Idaho, Louisiana, Mississippi, North Carolina, Nevada, South Carolina, Tennessee, Texas, and Utah. This list will likely fluctuate based on publicly available data and metrics and will be updated online by the health authorities in New York, Connecticut, and New Jersey.
New York’s Department of Health issued interim guidance related to the travel advisory on June 24. The guidance provides helpful information concerning the metrics used to determine which states are subject to the travel advisory, the quarantine requirements for travelers from impacted jurisdictions, limited exceptions to the travel advisory, and enforcement mechanisms and penalties.
Travelers to New York, Connecticut, or New Jersey subject to the travel quarantine are expected to follow the states’ respective guidance for self-quarantining upon arrival. For instance, New York requires that travelers follow the New York Department of Health’s prior-issued regulations for quarantining, which include the following mandates:
Exemptions for First Responders, Essential Workers, and Others
New York provides comprehensive guidance for essential workers and their employees subject to the travel quarantine guidelines. This guidance is based on the length of the workers’ stay in New York and the symptoms (if any) presented.
These essential workers are also expected to comply with the New York Department of Health’s guidance and/or industry-specific guidance regarding a worker’s return to work after a suspected or confirmed case of COVID-19 or after the worker was exposed to a person with COVID-19.
Unlike New York, neither New Jersey nor Connecticut has issued extensive guidance on the requirements of or exemptions from the travel-related quarantine. That said, both states have published some initial information.
New Jersey’s guidance states that travelers and residents returning from an impacted state should self-quarantine at their homes or other lodging, and should leave the place of self-quarantine only to seek medical care/treatment or obtain food or other essential items.
New Jersey also exempts individuals traveling to New Jersey from impacted states for business. This, for example, would include truckers driving from an impacted state to New Jersey, and any state, local, and federal officials and employees traveling in their official capacities on government business. The individuals should still consider postponing any travel and are encouraged to self-monitor for symptoms upon return from any travel to an impacted state.
Similarly, Connecticut’s FAQs state that workers traveling from impacted states to Connecticut who work in critical infrastructure (as designated by the Cybersecurity and Infrastructure Security Agency) are exempted from the quarantine advisory. This includes any state, local, and federal officials and employees traveling in their official capacities on government business.
New York, Connecticut, and New Jersey have all stated that the requirements of the travel advisory do not apply to any individual passing through designated states for a limited duration 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.
According to the New York guidance, it is incumbent upon the traveler to take personal responsibility for complying with the travel advisory. Should a traveler fail to adhere to the quarantine requirements, other individuals are urged to contact their local health department, call the New York State COVID-19 New York on PAUSE Enforcement Task Force hotline, or complete a violation complaint form.
Local and state departments of health are tasked with enforcing the travel advisory. In New York, according to Governor Cuomo, those violating the quarantine order could be “subject to a judicial order and mandatory quarantine.” A first violation could result in a $2,000 fine and could go up to $10,000 for subsequent violations. Connecticut’s applicable FAQs strongly encourage all visitors to the state to quarantine, but note that “[i]t will be up to individuals to abide by the advisory.” Similarly, New Jersey’s FAQs state that the self-quarantine for travelers to its state is voluntary, but compliance is expected.
In New York, Governor Cuomo issued an executive order on June 26, 2020, providing that if an employer provides advance notice to employees, an employee who voluntarily travels to an impacted state for non-business reasons and then is required to quarantine upon return shall not be eligible for paid sick leave benefits or any other paid benefits pursuant to New York’s COVID-19 Paid Sick Leave Law. This restriction previously only was available if the employee traveled internationally to a country for which the national Centers for Disease Control and Prevention had a level two or level three travel health notice in place.
However, if the travel to an impacted state is taken as part of the employee’s employment or at the direction of the employee’s employer, then the employee may still be entitled to paid sick leave under New York state law. Therefore, employers should be aware that by sending an employee from an impacted state to New York, they may be creating a claim that the employee is eligible for two weeks of paid sick leave (or less for employers with less than 100 employees) upon return, provided that the employee cannot work remotely and is not asymptomatic.
Unlike New York (which has a specific carve-out for the use of COVID-19 paid sick leave for self-quarantining due to voluntary travel to an impacted state), it is unclear how New Jersey will apply its state-mandated earned sick leave law to the travel-related quarantine. The New Jersey Earned Sick Leave Law permits an individual to use earned sick leave that they have accrued when—during a state of emergency declared by the governor, or upon the recommendation or direction of a healthcare provider or the commissioner of health or other authorized public official—the employee undergoes a quarantine as a result of a suspected exposure to a communicable disease and there is a finding by the provider or authority that the employee’s presence in the community would jeopardize the health of others. The application of the New Jersey Earned Sick Leave Law will generally be case and fact specific.
Employers in New York, Connecticut, and New Jersey must be cognizant of their employees’ travel arrangements (both professional and personal). Specifically, employers should inform employees traveling from an impacted jurisdiction to the tristate area that they will be subject to a mandatory travel quarantine, subject to the exemptions discussed above.
New York employers should also consider adding language to the required daily self-assessment form for employees working in person, affirming that each employee is not subject to self-quarantine and has not traveled to or from an impacted state within the last 14 days.
Businesses in New York, New Jersey, and Connecticut that are in the reopening process, as well as businesses that have personnel in any impacted state who regularly travel to the tristate area, need to be aware of the quarantine requirements each state now has in place. Businesses should be especially mindful of the potential rights to sick leave that workers traveling to these states may have, and businesses sending employees on travel should take additional steps to help their employees travel safely and minimize the risk of spreading COVID-19.
Based on the additional guidance each state has published, businesses may consider updating their travel policies and taking steps to appropriately tailor essential travel definitions in any such policies. Employers in New York specifically should consider reviewing their travel policies and/or guidelines to make clear that voluntarily personal travel to impacted states and select international locations may preclude the employee from using the New York State COVID-19 Paid Sick Leave upon return to New York.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
August Heckman III