On October 31, 2020, New York Governor Andrew Cuomo signed Executive Order 205.2 which introduced new travel guidelines modifying the quarantine requirements for out-of-state travelers and giving covered individuals the option to "test out" of the duty to quarantine. As of November 4, 2020, travelers arriving from any state other than those contiguous with New York must quarantine for 14 days or, in the alternative, participate in the testing protocol outlined in the Executive Order.
Employers with employees in New York should revise their COVID-19 response policies and practices, including those concerning eligibility for leave under the Families First Coronavirus Response Act, in light of these modifications to the state's travel restrictions.
Over the past several months, the New York State Department of Health has maintained a steadily growing list of states experiencing significant community spread of COVID-19. Under the Governor's June 24, 2020 Executive Order 205, states having a positive COVID-19 test rate greater than 10 per 100,000 residents, or higher than a 10 percent test positivity rate, over a seven-day rolling average were added to the list of restricted states. Travelers arriving from these states were required to quarantine for 14 days.
As of October 27, 2020, 45 states and territories—including states that share borders with New York and from which commuters regularly travel into the state—met the requirements set forth in Executive Order 205. Rather than maintain a running list of states experiencing community spread of COVID-19, Executive Order 205.2 calls for travelers arriving from any non-contiguous state to either self-quarantine for 14 days or follow the updated testing protocol.
Travelers arriving from neighboring states are not subject to New York's updated quarantine or testing protocol, regardless of whether those states are experiencing significant community spread. In an earlier press release, Governor Cuomo acknowledged that requiring travelers arriving from Connecticut, New Jersey, Pennsylvania, and Massachusetts to quarantine is "not practically viable," given the interconnected nature of the region. Accordingly, the new Executive Order 205.2 exempts from its scope travelers arriving from states contiguous with New York, but highly discourages non-essential travel from those neighboring states experiencing significant community spread.
Effective November 4, 2020, out-of-state travelers to New York may "test out" of the mandatory 14-day quarantine. Travelers from states that are contiguous with New York will continue to be exempt from the travel advisory. However, all covered travelers must complete the New York State Department of Health's Traveler Health Form upon arrival in New York.
Executive Order 205.2 establishes the following testing protocol as an alternative to the 14-day quarantine period:
- For travelers who were in another non-bordering state for more than 24 hours:
- The traveler must be tested within three days of departure from that state.
- The traveler must, upon arrival in New York, quarantine for three days.
- On the fourth day of quarantine, the traveler must obtain another COVID test.
- If both tests comes back negative, the traveler may discontinue quarantine upon receipt of the second negative diagnostic test.
- For travelers who were in another non-bordering state for less than 24 hours:
- The traveler does not need a test prior to their departure from the other state and does not need to quarantine upon arrival in New York State.
- However, the traveler must fill out the Traveler Health Form upon entry into New York State and take a COVID diagnostic test four days after their arrival in New York.1
All out-of-state travelers must complete the form upon entering New York. Travel enforcement teams will be stationed at airports statewide to greet disembarking passengers to request proof of completion of the health form, distributed to passengers by airlines prior to and upon boarding or disembarking flights to New York State.
Travelers who leave the airport without completing the form will be subject to a $2,000 fine and may be brought to a hearing and ordered to complete mandatory quarantine. Travelers coming to New York through other means of transport, including trains and cars, must complete the form online.
Since March 2020, New York State has required any traveler entering New York from a country designated as a COVID-19 "Level 2" or "Level 3" country by the Centers for Disease Control to quarantine themselves for 14 days. This currently includes all but 31 countries.
On September 28, 2020, Governor Cuomo signed Executive Order 205.1 reminding international travelers to quarantine and fill out the Traveler Health Form. Individuals may be subject to civil penalties if they refuse to fill out the required form. Travelers arriving from "Level 2" or "Level 3" countries must quarantine for the full 14 days and may not avail themselves of the two-step testing alternative outlined in Executive Order 205.2.
Exemptions for Essential Workers
Essential workers are exempt from the quarantine and testing requirements, depending upon the time spent in non-contiguous states, as well as the intended duration of time in New York.2 The State provides guidance for short term (less than 12 hours); medium term (less than 36 hours); and long term (greater than 36 hours) travel to New York. For example, essential workers traveling to New York for a period of greater than 36 hours:
- 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.
- Must, to the extent possible, avoid extended periods in public, contact with strangers, and large congregate settings for a period of at least 14 days.
Ineligibility for Paid Sick Leave
Under Executive Order 205, New York employees who engaged in non-essential personal travel to high risk states or to Level 2 or 3 countries were ineligible for paid benefits under New York's COVID-19 paid leave law. It is presumed that this same rule would apply to any employee returning from personal travel to a non-contiguous state.
However, as of the time of publication of this blog post, the State Department of Health's Frequently Asked Questions Regarding Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel have not been updated to reflect changes introduced by Executive Order 205.2.
State Guidance Subject to Change
It is anticipated that the State Department of Health will continue to update the guidance available to travelers on its Travel Advisory webpage in light of Governor Cuomo's recent Executive Order. Employers should actively monitor this site and adjust policies and practices as updated information becomes available.
Since guidance is changing rapidly, we advise all New York employers to consult with counsel before making personnel decisions, particularly those involving sick leave, in response to employees who travel outside the state for personal reasons during the ongoing COVID-19 crisis.
1 Local health departments will validate tests, if necessary, and if a test comes back positive, will issue isolation orders and initiate contact tracing. The local health department must make contact with the state the traveler came from to ensure contact tracing proceeds there as well.
2 An "essential worker" is (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 facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.