New York, New Jersey, and Connecticut issued a joint incoming travel advisory, effective June 25, 2020, requiring all individuals—including Tristate Area residents—to self-quarantine for 14 days when arriving from an “impacted state.” The Joint Travel Advisory defines “impacted state” as a state having: (i) a positive COVID-19 test rate higher than 10 per 100,000 residents, or (ii) 10% or higher test positivity rate, over a seven-day rolling average. As of the date of publication, the list includes Alabama, Arizona, Arkansas, Florida, North Carolina, South Carolina, Texas and Utah. The Joint Travel Advisory asserts that impacted states are assessed based on a seven-day rolling average. While the governors of each state initially claimed the list of impacted states would be updated daily, the Connecticut and New Jersey websites indicate they will update the list weekly; New York’s website is silent regarding how often the list will be updated.
The Joint Travel Advisory is to be communicated widely at all major points of entry into the Tristate Area, including on highway message boards and in each state’s airports. While labeled a Joint Travel Advisory, each state is responsible for implementation and enforcement of its own respective travel advisory. This has caused confusion and has resulted in inconsistent rules for the three states, rather than uniformity.
The governors of both New York and Connecticut have issued executive orders, while New Jersey does not have any official order and has merely issued a travel advisory. New York’s order requires a 14-day quarantine for all individuals traveling from an impacted state.1 Additionally, New York is the only state that has imposed a civil penalty for violating the order. For a first violation, an individual could be fined $2,000, which is increased to $5,000 for a second violation, and up to $10,000 if an individual causes harm.
While Connecticut’s executive order similarly mandates that all travelers abide by the Joint Travel Advisory, it does not impose any penalty or any enforcement mechanism.2 Further confusing the issue, although Connecticut’s order provides that quarantine is required, the state’s website indicates that it is a travel advisory, and although the state is “strongly urging” people to quarantine, it is ultimately up to individuals to comply.3
New Jersey has not issued an executive order on the topic, but has instead issued informal guidance. Both Governor Murphy and the state’s applicable website assert that, while the self-quarantine is voluntary, full compliance is expected.4
Each state’s public health commissioner may issue additional protocols for essential workers, or for other extraordinary circumstances, when a quarantine is not possible. Accordingly, each state has issued specific and conflicting guidance relating to particular types of workers. New York’s guidance requires essential workers and first responders (as defined therein) to take certain steps to minimize risk depending on the length of time they will remain within New York, but exempts them from the mandatory self-quarantine. Connecticut’s guidance, on the other hand, exempts essential workers (as defined by the Cybersecurity and Infrastructure Security Agency) entirely from its travel advisory. New Jersey’s guidance exempts all individuals traveling for business from application of its travel advisory.
Impact on Employers
The Joint Travel Advisory and accompanying orders and guidance create several complicated issues for employers in the Tristate Area. First, employers may have an ongoing obligation to keep employees out of the workplace for up to 14 days, regardless of whether an employee traveled for business or pleasure to any affected state. Compliance with the Joint Travel Advisory may also prove difficult, as the list of impacted states meeting the above-referenced 10% or 10 per 100,000 COVID-19 positive rate could change frequently. The inconsistent framing of the self-quarantine (voluntary v. required), as well as different exceptions for various workers, may also pose problems for employers with employees who live in one state and work in another, as it is unclear which order applies in such situations.
Tristate Sick Leave Laws
The Joint Travel Advisory does not address whether employers need to provide paid time off for employees during their 14-day quarantine period upon their return from the affected states. Within the context of the Families First Coronavirus Response Act (FFCRA), employees of covered employers are eligible for emergency paid sick leave (EPSL) if they are subject to a federal, state or local quarantine or isolation order. While New York and Connecticut’s Orders would likely be sufficient to trigger eligibility for EPSL, New Jersey’s failure to issue an actual quarantine “order” and both New Jersey and Connecticut’s description that the Joint Travel Advisory is “voluntary,” raise a question regarding employees’ eligibility.
Additionally, employers must consider whether impacted employees are entitled to leave under applicable state and local paid sick leave laws and ordinances. Soon after the issuance of the Joint Travel Advisory, New York Governor Cuomo issued Executive Order 202.45, effective June 26, 2020 through July 26, 2020, clarifying that any employee who voluntarily travels to an impacted state would not be eligible for paid leave benefits under New York’s COVID-19 Paid Leave Law, unless such travel was taken as part of the employee’s job duties or at the direction of the employer. However, it is unclear whether Executive Order 202.45 supersedes Erie County, New York’s self-quarantine guidance for persons who traveled outside of Western New York to an area known for community spread can seek coverage under New York’s COVID-19 Paid Leave Law. Employers should also take note that both New York City and Westchester County currently enforce local paid sick and safe time mandates, which require paid leave for an employee’s need for preventive medical care or medical diagnosis. It is arguable that, while not eligible for paid time off under New York’s COVID-19 Paid Leave Law, employees will still be permitted to use any accrued, available time under the paid sick leave laws to receive a medical diagnosis or preventive care during any self-quarantine period.
For New Jersey employers, employees are likely entitled to use their New Jersey paid sick leave during any quarantine period. As result of the pandemic, the New Jersey Earned Sick and Safe Leave Law has been expanded to include additional permissible reasons for taking leave, such as when employees undergo isolation or quarantine during a governor-declared state of emergency, or upon the recommendation, direction, or order of the Commissioner of Health. As of this writing, the New Jersey has not yet issued an official order by Governor Murphy or the New Jersey Commission of Public Health, although there is a recommendation that employees traveling from impacted states self-quarantine.
By contrast, employees are not likely to be entitled to use Connecticut paid sick leave during a period of self-quarantine resulting from the Joint Travel Advisory. Similar to New York’s sick leave laws, the Connecticut Paid Sick Leave Law allows use of paid sick leave for employees’ preventive medical care, but does not include, for example, use relating to public health emergencies. It is an open question whether self-quarantining so as not to infect anyone else in the state would be deemed preventive medical care.
Anticipating their employees’ need to self-quarantine for 14 days when returning from impacted states, employers may seek to restrict travel to avoid the absence of an employee for an additional two weeks. Employers must be aware of potential legal issues if they seek to ban or otherwise limit employees from traveling on personal time to the impacted states. For example, New York and Connecticut employees may claim that such restrictions violate statutory protections for off duty conduct, although employers may well have strong defenses against such claims.
Moreover, state, and local government employers may be more constrained in banning public employee travel. Banning travel to affected states or disciplining employees for travel to those states might result in challenges based on Constitutional protections for interstate travel.
Employers must consider a variety of factors and options, including whether to restrict all use of paid time off, restrict all travel, restrict travel only to impacted regions, or whether to permit travel but require any quarantine time be unpaid (absent any entitlement to paid time off an employee may have under applicable leave laws). Similarly, any policy restricting travel should leave room for exceptions under special circumstances. The complexity of these issues, possible claims, and defenses to those claims suggest that employers should consult with counsel before adopting any policies related to the quarantines.
Finally, employees may be eligible for paid time off during the Joint Travel Advisory’s 14-day quarantine period if the employer’s emergency and/or paid sick leave policy so provides. Employers should consider whether to amend their internal policies to address, prospectively, the exact scenarios—and resolve uncertainties—addressed in the Joint Travel Advisory and accompanying orders and guidance.
In any event, the Joint Travel Advisory leaves open many questions in addition to those raised above, including 1) Are New York employees eligible for paid time off under New York’s COVID-19 Paid Leave Law if they travel out of the Tristate Area to a state initially deemed “safe,” but due to the rolling average mechanism, subsequently becomes an “impacted state” that requires self-quarantine upon their return? (2) Can employers deny an employee’s travel request based on “business needs?” (3) If an employer has enacted a policy banning non-emergent travel to any affected states, can the employer discipline an employee for violating such a travel ban policy, and if so, what form should discipline take? (4) Does an employer have any obligation to monitor employee compliance, especially in New Jersey where the quarantine is not “mandatory”?
Many other fact-specific questions and issues will likely arise as we continue to move through this pandemic and the list of impacted states potentially changes and grows.
Next Steps for Employers
Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic and before adopting any policy that purports to restrict employees’ travel.