Following publication of this Alert, Gov. Cuomo issued an Executive Order making an important change to employee leave rights related to voluntary travel to high-risk states. Please see our update here.

The latest Executive Order issued by Governor Cuomo (Order 205) requires certain individuals to quarantine for 14 days upon arriving in New York State if they are traveling from states with significant community spread of COVID-19. New York State bands together with New Jersey and Connecticut in the implementation of this travel advisory, which became effective on June 25, 2020, in response to increased rates of COVID-19 transmission in a number of states throughout the country.

States with Significant Community Spread

States will be designated as having “significant community spread” if the state has either a positive test rate higher than 10 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. The list of designated states will be updated on a weekly basis. As of today, the following states have been designated as meeting the criteria for required quarantine:

• Alabama
• Arkansas
• Arizona
• Florida
• North Carolina
• South Carolina
• Texas
• Utah

Of note, individuals who are simply passing through a designated state are not subject to the 14-day quarantine. The New York State Department of Health (“DOH”) 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 lay-overs for air travel, bus travel, or train travel.”

Exemptions for Essential Workers

The DOH’s Interim Guidance carves out an exception to the travel advisory for “essential workers.” The Guidance defines “essential worker” as:

• 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 settings, 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.

Essential workers and employers of essential workers, must be aware, however, that the Guidance sets forth certain requirements for employees to follow, depending on their duration in the designated state, as well as their intended duration of time in New York State:

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 layovers, 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.

Essential workers and their employers are still required to comply with previously issued DOH guidance regarding the 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. Neither the Executive Order nor the Interim Guidance detail whether employers have any obligations regarding compliance with the Executive Order, but industry-specific guidance may be forthcoming.

Employee-Leave Entitlements While Under Quarantine

Employees who are required to quarantine may be entitled to leave under the New York State COVID-19 Leave Law and the Federal Families First Coronavirus Response Act (“FFCRA”). Under the FFCRA, employees are entitled to sick leave if they cannot work because they are “subject to a Federal, State, or local quarantine or isolation order.” Similarly, the New York State COVID-19 Leave Law grants leave to employees who cannot work because they are subject to a “mandatory or precautionary order of quarantine or isolation.” The State COVID-19 Leave Law does disallow paid leave if an employee voluntarily traveled to an international COVID-19 hotspot; but it does not account for domestic travel.

Because the Executive Order is an order of quarantine issued by the State of New York, employees returning from designated states may qualify for leave under the FFCRA and the State COVID-19 Leave Law.

Enforcement and Penalties

The Executive Order states that individuals traveling from designated states are personally responsible for complying with the quarantine requirements. There do not appear to be any plans to actively police the Executive Order, but the Interim Guidance does list a hotline and website to report non-compliance. The Executive Order further cautions that individuals violating an order to quarantine can face penalties of up to $10,000.

It should be noted, however, that a lawsuit has already been filed seeking a temporary restraining order preventing enforcement of the Executive Order. For now, the Executive Order remains in effect, but that could change in the near future.