On Wednesday, June 24, 2020, Govs. Cuomo of New York, Murphy of New Jersey and Lamont of Connecticut jointly announced an advisory for travelers arriving in their states from parts of the country hit hard with COVID-19. The travel advisory affects any person arriving from a state with a positive test rate higher than 10 per 100,000 residents or a rolling seven-day average positivity rate of 10% or higher, to quarantine for 14 days. As of the date of this alert, this applies to people traveling from Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Utah and Texas.
The tri-state area was considered the epicenter of the virus in March and April, but by taking preventative measures, New York, New Jersey and Connecticut were able to get the numbers of new cases and deaths down considerably. Now that the states are beginning to reopen, the governors want to ensure that the virus numbers remain low. Many other states across the country that were not impacted as heavily early on are now seeing their numbers steadily increase.
Notably, this is an “advisory,” not an “order,” and Gov. Murphy indicated that it relies on people to “do the right thing” and “take on a big amount of personal responsibility.” But the governors have also indicated that violators may be subject to a judicial order or escalating fines if they fail to adhere.
The travel advisory implicates several employment issues. Under the Families First Coronavirus Response Act (FFCRA), employees are entitled to up to 80 hours of emergency paid sick leave if they are “subject to a federal, state, or local quarantine order related to COVID-19 or are caring for an individual subject to such a quarantine order.” The term “quarantine or isolation order” is undefined in the statute, but the regulations broadly define it to include:
"[Q]uarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them."
Therefore, it would appear that an individual traveling from a state covered by this advisory would be entitled to the paid sick leave benefit under FFCRA.
State laws may be implicated as well. For example, the New Jersey Family Leave Act (NJFLA) and the New York Paid Family Leave Law (NYPFL) were recently amended to include situations in which an employee or their family members are subject to recommendations or orders to quarantine. Likewise, New Jersey’s Earned Sick Leave Law was also amended to allow employees to have paid leave “upon the recommendation, direction, or order of a health care provider or the Commissioner of Health or other authorized public health official, the employee undergoes isolation or quarantine or cares for a family member in quarantine….” The quarantine that is mandated in the travel advisory would likely apply to these laws.
In light of this advisory, it may be a good time for employers to update their policies on business travel, if they have not already done so. The policy can define “essential” and “non-essential travel” and include procedures for approval. At the very least, employers in the tri-state area may want to cease or significantly limit the travel of employees to any area covered by the travel advisory.