Sing along if you know the words… “over the river and through the drive-in testing site to grandmother’s house we go!” With the official start of the holiday season just a few days away, many families are making difficult decisions: How can we celebrate the holidays with the people we care about the most? Is it safe to travel? Or is it going to be a FaceTime Thanksgiving? (Is it me, or does that sound like a Hallmark holiday movie?)
From the perspective of employers in New York State (“NYS”), questions abound. As the number of positive COVID-19 tests continue increasing, they’re concerned about their employees’ health and safety. They’re also concerned about the State’s restrictions negatively impacting their already struggling businesses.
One of the most common questions I hear from clients is, “why does everything need to be so complicated?” Unfortunately, compliance with employment and business laws and regulations has always been complicated. There are just more laws and regulations continually clamoring for your attention right now. That’s not going to change anytime soon. However, employers can manage the stress of new and competing compliance requirements with knowledge. That means knowing which laws and regulations apply to their businesses and what they can, can’t, should, shouldn’t, must, and absolutely must not do to comply. With the Thanksgiving holiday only days away, the most pressing employer concerns are related to employee travel and the State’s travel advisory.
On October 31, Governor Cuomo issued Executive Order 205.2, which significantly changed the NYS Travel Advisory for domestic travel. Unfortunately, the updated guidance document provided by the State’s Department of Health on November 3, caused considerable confusion. I hope the following explanation reduces that confusion.
Revised New York State Travel Advisory
First, NYS no longer designates “high risk” states as the basis for travel restrictions. Instead, except for the border states identified below, the State’s travel advisory requires anyone who has been outside NYS more than 24 hours to either complete a 14-day mandatory quarantine or satisfy a two-step negative test (“test-out”) procedure. This updated travel advisory also applies to travelers coming to NYS from any country designated by the CDC as Level 2 or Level 3.
Secondly, the domestic travel advisory does not apply to individuals entering NYS from Connecticut, Massachusetts, New Jersey, Pennsylvania, or Vermont (the “border states”). Entry from those states is generally unrestricted.
14-Day Quarantine or “Test-Out”
Individuals – including NYS residents – entering the State after more than 24 hours in another state or states (other than border states) must:
- Take a COVID-19 test within 72 hours (3 days) before arriving in NYS;
- Complete a NYS Traveler Health Form (PDF); and
- Either quarantine for 14 days or follow the test-out procedures.
To test out of the 14-day quarantine mandate, individuals must:
- Quarantine for at least three (3) days, beginning the day they arrive in NYS;
- On day four (4), take a second COVID-19 test; and
- Continue to quarantine until they receive negative test results from both COVID-19 tests.
If the results of both COVID-19 tests (the first taken before arriving in NYS and the second taken on the fourth day after arriving) are negative, the individual is no longer required to quarantine. However, if either test is positive, the individual must continue to quarantine for the full 14-day period.
Individuals – including NYS residents – entering the State after spending fewer than 24 hours in another state or states, other than border states:
- Are not required to submit to a COVID-19 test before arriving in NYS; and
- Are not required to quarantine.
However, these individuals must:
- Complete a NYS Traveler Health Form (PDF); and
- Take a COVID-19 test on the fourth day after entering NYS.
Testing will be validated by local health departments, which will issue isolation orders and initiate contact tracing for positive test results. Further, local health departments will notify the appropriate authorities in the state(s) where the individual traveled to initiate contact tracing in those areas.
Essential Workers – UPDATED 11/13/2020
Essential workers – as defined by Empire State Development Corporation guidance – remain exempt from the mandatory quarantine requirements only if the travel was business-related. Essential workers who travel outside NYS and the border states for personal reasons for more than 24 hours must follow the procedures described under the heading 14-day Quarantine or “Test-Out” above. Essential workers on business-related travel outside NYS and the border states for more than 24 hours must:
- Complete a NYS Traveler Health Form (PDF);
- Take a COVID-19 test on the fourth day after entering NYS;
- Monitor their temperature and signs of COVID-19 symptoms, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces; and
- To the extent possible, avoid extended periods in public, contact with strangers, and large group situations.
What Employers Should Do Now
With the new test-out option sure to be popular during the upcoming holidays, employers have expressed a few concerns and questions:
Q: Can employers ask employees about travel plans over the upcoming holiday season?
A: Generally, yes, employers can ask employees about upcoming travel plans. However – there’s always a however – employers should question employees equally and consistent with business necessity. Don’t target specific employees, such as only those with children or grandchildren living out of the area (generally over 40 years old-a protected category). Consider a brief employee survey about upcoming travel plans that explains why the information is being requested. Also, there’s likely no legitimate business purpose for asking employees who work exclusively from home about their travel plans.
Q: Can employers prohibit or restrict employees’ personal travel?
A: Another complicated question. The short answer is, no. Ignoring the likely employee relations issues, there may be legal issues to strongly consider. For example, NYS prohibits employers from disciplining or otherwise discriminating against employees for participating in lawful off-duty conduct or activities. The law’s broad language likely extends its protections to personal travel. Do you want to be the test case?
Q: We’re concerned about employees returning to the workplace too soon after they travel. Are employers required to allow employees to test-out of the post-travel quarantine?
A: Generally, no. Employers can choose whether to allow employees to return to the workplace if they follow the test-out procedures and receive two (2) consecutive negative COVID-19 test results.
If an employer isn’t confident that the test-out process adequately protects their workplace from potential exposure, they should consider adopting a more conservative travel policy. For example, the policy may require the standard 14-day quarantine, regardless of whether the employee follows the test-out process. Another option may be to implement a variation of the test-out process.
Employees traveling out-of-state for more than 24 hours:
- Consider requiring a specific type of diagnostic testing, i.e., RT-PCR (i.e., a nasopharyngeal or nasal swab), as opposed to a saliva test); and/or
- Consider requiring two (2) negative test results on or after the fourth day following the employee’s arrival in NYS.
Similarly, for employees traveling out-of-state for fewer than 24 hours, consider requiring a quarantine period from when they return to NYS through the time they receive a negative test result from testing administered on the fourth day.
Q: Can an employer require employees to follow the test-out procedures after returning from out-of-state travel?
A: Employees can choose whether to quarantine for the full 14-day period or test-out of the requirement. The new guidance does not eliminate the 14-day mandatory quarantine requirements; it provides an option to test-out. Further, employees choosing to follow the 14-day quarantine mandate must not be disciplined or retaliated against.
Q: How can employers comply with state and federal mandates to ensure a safe workplace and avoid violating other laws if employees travel out-of-state over the holidays?
A: Knowledge, facts, and sound reasoning.
Knowledge: It’s important to know what laws and regulations apply to your business and how they interact – no doubt, a herculean task. Essential factors in providing employees a safe workplace include: ensuring all necessary cleaning and sanitizing protocols are strictly followed; enforcing workplace occupancy and social distancing requirements; providing employees with adequate cleaning supplies, face coverings, and hand sanitizer; and enforcing the State’s travel advisory requirements and the Company’s travel policy fairly and consistently.
Facts: Yes, employees traveling to COVID-19 hotspots may increase the chances of infection and workplace exposure. However, the primary cause of the recent spike in COVID-19 cases has been small gatherings. Gatherings that are similar to those employees will attend over the next several weeks, regardless of whether they travel outside their neighborhood, the State, or country.
Sound reasoning: Employers have faced unprecedented and immense personal and business-related stress for months, and there doesn’t appear to be any relief coming soon. It’s vital to resist making employment-related decisions based on emotions, rumors, or best guesses. Instead, gather the facts; determine which laws and regulations apply; make sound, informed, and lawful decisions; and then document the process and facts supporting the decisions. For example, presume employees are planning to travel and attend holiday gatherings with family and friends. That means planning now for the possible outcomes – including quarantines, staffing issues, workplace exposure, and the potential need for deep cleaning and sanitizing. Remember, the decisions you make now may need to be defended weeks, months, or even years later.
Finally, employers should create and implement a written COVID-19 travel policy, distribute the policy to all employees, and require a signed acknowledgment that they have received and will abide by it.
If you’ve gotten through all that – with or without the aid of an adult beverage – congratulations! Although mind-numbing, compliance with all permanent and COVID-specific laws and regulations is vital.
If you have any questions, or would like help with policies or any other employment-related issues, please contact me at firstname.lastname@example.org, or call 585-416-0751.
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Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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