Effective June 25, 2020, New York State Governor Cuomo’s Executive Order 205 (“Order”) went into effect requiring that those who have spent more than 24 hours in a COVID-19 “hot spot” or “restricted” state must quarantine for 14 days after traveling to New York. The New York State Department of Health has been continuing to update the list of restricted states, and penalties for violating the Order can range up to $10,000.00. Quarantine means staying in particular separated quarters at home, having food delivered to those quarters and monitoring temperature/symptoms from home.
Naturally, employers were immediately anxious about their ability to have sufficient staff and the possible cost of the Order. Neither of those issues should be a problem for essential businesses (as per the original Empire State Development Corporation list, which can be found in one of our previous posts), as their employees may continue to work at the worksite and avoid the quarantine obligation if:
They get a diagnostic test within 24 hours;
Monitor temperature, socially distance, wear face coverings, maintain clean work area for 14 days;
Avoid extended periods in public, contact with strangers and avoid large gatherings for 7 days. Separately, even non-essential employees may continue to work if they are able to do so from home.
As for non-essential employees who cannot work from home, employers have immediately questioned whether these employees will not only have to be temporarily replaced but also paid. That answer is clearly no under the New York COVID paid sick law, as the Governor issued an additional Executive Order to that effect on June 27, 2020, as long as the employees are provided notice of same prior to the voluntary travel. However, under the federal FFCRA, such quarantine time does appear to qualify for COVID paid sick leave, as that law does not contain any exception for voluntarily becoming subject to an order of quarantine. Employers paying FFCRA COVID paid sick leave to employees are eligible for tax credits so should consult with their accountants. Notably, the FFCRA does not apply to employers with more than 500 employees, provides an exception for health care provider and emergency responder employers and expires on December 31, 2020. (FFCRA COVID paid family leave would not come into play from the travel quarantine, as that only applies to childcare.)
Given all of the above, some employers have wondered whether they can simply ban such voluntary travel to a restricted state. Given New York’s Lawful Activities law, which prohibits employers from discriminating against employees engaged in lawful recreational activities, it is unlikely such a ban would be permitted if challenged by an employee. It certainly is wise for employers to ask employees to notify them of such travel, and it would be lawful to ask employees to re-consider the timing of any such trip.
Obviously, these are complicated times raising complicated employment law issues, so please do not hesitate to contact us anytime with questions.
If you have any questions, please contact us here or at 585-258-2800.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.
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