New York State: Employees Subject to Quarantine Because of Personal Travel to Areas Listed in Travel Advisory Are Not Eligible for State's Paid Sick Leave

New York Executive Order 202.45 temporarily modifies New York State's Sick Leave Law for COVID-19 (the "Sick Leave Law") to make employees who voluntarily travel after June 25, 2020 to a state or jurisdiction listed on a "travel advisory" list ineligible for New York's paid sick leave benefits ("Paid Sick Leave"), unless the travel was taken "as part of the employee's employment or at the direction of the employee's employer."

Prior to issuance of this Executive Order, employees subjected to a precautionary order of quarantine after traveling to countries with a level two or three travel health designation from the Centers for Disease Control and Prevention were already ineligible for Paid Sick Leave. Executive Order 202.45 expands the ineligibility for Paid Sick Leave to employees who must quarantine after voluntarily traveling to designated areas.

As of August 18, 2020, the list of states and other jurisdictions whose travelers face restrictions in New York includes: Alabama, Arkansas, California,  Florida, Georgia, Guam, Hawaii, Iowa, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Mississippi, North Carolina, North Dakota, Nebraska, Nevada, Oklahoma, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Virgin Islands, and Wisconsin.

The travel advisory does not apply to individuals traveling through the designated areas for a limited duration of less than 24 hours.

Additionally, there is an exemption for "essential workers," which includes (1) any individual employed by an entity included on the Empire State Development Essential Business list; (2) any individual who is employed as a health care worker, first responder, or within a nursing home, long-term care facility or congregate care setting, so long as that individual meets the COVID-19 testing criteria; (3) any individual who is employed as an essential employee who directly interacts with the public while working; and (4) any other worker deemed as essential by the Commissioner of Health.

Employers should be aware that essential workers are subject to certain requirements based on the length of time that they are in New York.

For essential workers traveling to New York for a period of less than 12 hours, including deliveries and layovers, they:

  • must stay in their vehicle and/or limit personal exposure by avoiding public spaces as much as possible;
  • must, to the extent possible, avoid extended periods in public, contact with strangers and large congregate settings; and
  • should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance and clean and disinfect workspaces.

For essential workers traveling to New York for a period of less than 36 hours, requiring an overnight stay, including deliveries and longer layovers, they:

  • must, to the extent possible, avoid extended periods in public, contact with strangers and large congregate settings; and
  • should monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance and clean and disinfect workspaces.

For essential workers traveling to New York for a period of greater than 36 hours, requiring them to stay for several day, they:

  • 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, clean and disinfect workspaces for a minimum of 14 days; and
  • must avoid extended periods in public, contact with strangers, and large congregate settings for a period of at least 14 days.

Employers should clearly communicate the effect of Executive Order 202.45 to all employees in order to promote compliance. Under New York law, it is unlawful for employers to discriminate against employees for engaging in recreational activities outside of working hours, off the employer's premises and without use of the employer's equipment or other property, if such activities are legal. An employer cannot restrict an employee from personal travel to the restricted areas or other areas affected by COVID-19. Employers should, however, ensure that employees are aware of the eligibility restrictions for Paid Sick Leave.

For further information regarding how this law affects your organization, please contact Laura L. Spring, Esq. at CCB Law.