October 1, 2020
By: Kimberly Klein
To contain the transmission of COVID-19 in New York State, Governor Cuomo issued Executive Order (EO) No. 205 on June 25, 2020, requiring individuals to quarantine for 14 days after traveling for 24 hours or longer to high-risk COVID-19 states. On September 28, 2020, as a result of the Centers for Disease Control (CDC) recently rolling back quarantine recommendations for international travelers, the EO was modified to add travelers entering the United States from any country with a CDC Level 2 or Level 3 health notice (EO 205.1). This includes all but roughly thirty “low” or “very low” risk countries. (click here for a list of the “Designated States” and here for a list of “Restricted Countries”).
Employers must be aware of the potential application of New York State and federal COVID-19-related leave laws as employees voluntarily travel to Designated States and Restricted Countries.1 The mandatory 14-day quarantine period is not waivable, even with a negative COVID test because, according to the Department of Health, “[s]ymptoms of COVID-19 can appear as late as 14 days after exposure…a negative test cannot guarantee that you will not become sick.” The travel advisory, however, does not apply to individuals passing through Designated States or Restricted Countries for a limited duration (i.e., less than 24 hours), including stopping at rest stops or layovers for air travel.
Consequently, employees choosing to vacation in a Designated State or Restricted Country, and who are unable to telework upon their return, will be “out of the office” an additional two weeks, putting a strain on already taxed businesses.
New York State COVID-19 Leave
On March 18, 2020, New York State enacted a COVID-19 sick leave law (“NYS COVID-19 Leave”) for individuals under “an order of mandatory or precautionary quarantine issued by the State, New York State Department of Health (“DOH”), local Board of Health, or other authorized government entity.” Depending on the number of employees and company revenue, employers may have to provide paid or unpaid guaranteed job protection leave to employees ranging from five days to two weeks, as well as disability (DBL) and paid family (PFL) leave in certain instances as follows:
- An employer with 10 or fewer employees and an annual net income less than $1 million → unpaid leave until the end of the quarantine order, PFL and DBL benefits, if eligible.
- An employer (1) with ten or fewer employees and an annual net income more than $1 million; or (2) between 11 and 99 employees → five (5) days of paid sick leave, PFL and DBL, if eligible, and job protection for the duration of the quarantine order.
- An employer with 100 or more employees or a public employer → 14 calendar days of paid sick leave.
Exception to NYS COVID Leave Benefits:
While the travel advisory would qualify as such a mandatory or precautionary quarantine order entitling employees to NYS COVID-19 Leave, the statute provides that any New York State resident who voluntarily travels to a Designated State or Restricted Country for travel that was not taken as part of the person’s employment or at the direction of the employer will not be entitled to the leave, provided the employer gave workers notice of this exception. Employees given proper notice of this exception must be allowed to take unpaid sick leave for the duration of the mandatory or precautionary quarantine or isolation or be able to use accrued, unused leave.
The DOH has stated that travelers are expected to “take personal responsibility” when complying with the travel advisory. However, employers must know where and when employees are traveling to ensure travel advisory quarantine rules are observed and the workplace is protected.
Individuals who violate a quarantine order may be subject to a civil penalty of up to $10,000 or imprisonment up to 15 days.
Despite the fact that NYS COVID-19 Leave may not apply if employers provide employees with proper notice concerning restricted travel, the State law supplements applicable federal COVID-19 sick leave laws and such federal law could very well apply.
Families First Coronavirus Response Act (“FFCRA”)
The federal government enacted the FFCRA, effective April 1, 2020 through December 31, 2020, which provides paid sick and family leave for workers as a result of the Coronavirus. The FFCRA applies to most employers with fewer than 500 employees. Among the qualifying reasons for taking FFCRA leave is a worker subject to “a Federal, State, or local quarantine or isolation order related to COVID-19.”
Under the FFCRA, an employee subject to such an order would be entitled to 80 hours of paid sick leave at the worker’s regular rate of pay, capped at $511 per day (or $5,110 in the aggregate). Paid leave under the FFCRA is in addition to employer-provided accrued, unused leave, and employers cannot require workers to exhaust other available paid leave before using FFCRA leave. To date, the FFCRA does not except voluntary travel to a Designated State or Restricted Country as a reason for denying the leave.
The travel advisory was jointly issued with New Jersey and Connecticut.
1 A Designated State is one identified as having a seven-day rolling average of over 10 percent of all COVID-19 tests producing a positive result, or the number of positive cases exceeding 10 per 100,000 residents.