Effective June 25, 2020, Governor Cuomo issued an Executive Order requiring all travelers into New York from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, to quarantine for a period of 14 days upon arrival in the state. A rapidly-changing list of states affected by this Executive Order may be found here.
So what does this mean for out-of-state travel by employees this summer? First, employers can discourage nonessential travel in accordance with the CDC’s Global COVID-10 Pandemic Notice, particularly to those states affected by the Governor’s Executive Order. If an employee elects to travel to one of the states affected by the Governor’s Executive Order, the employee must quarantine for 14 days following their return to New York. Employees who can work remotely should be expected to do so during the mandatory quarantine period.
Employers cannot generally terminate employees for going on vacation, because the law protects employees’ lawful, off-duty recreational activities. However, if an employee’s vacation plans will require the employee to quarantine for two weeks upon return and the employer cannot accommodate the extended absence from work, an employer may deny an employee’s request for vacation based on business needs. Also, exceptions to the 14-day quarantine requirement can be made for essential workers who cannot perform their job remotely provided employers follow the state requirements for doing so.
Please note, this travel advisory does not require any employees who have visitors from a state with a positive test rate higher than 10% to quarantine or if an employee is simply passing through one of these states (e.g., rest stop, layover, car or bus travel) for less than 24 hours. Similarly, if a member of an employee’s household – but not the employee – travels from an affected state, the employee does not need to quarantine.
Although the Governor clarified that employees who voluntarily travel to one of the states will not be eligible for NYS emergency sick pay, federal law will nonetheless come into play and require all employers with fewer than 500 employees to provide emergency paid sick leave for the quarantine period. Therefore, if an employee who travels from one of the restricted states is nonessential and cannot perform their work from home, you will have to pay the employee two weeks’ of paid sick leave (over and above their PTO accruals) under the Families First Coronavirus Response Act. Employers will be able to recoup this amount in the form of tax credits.