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New York Employees Who Voluntarily Travel to High Risk States Ineligible for COVID-19 Paid Sick Leave

July 2, 2020

On June 26, 2020, Governor Cuomo issued Executive Order No. 202.45 which, among other things, provides that an employee who voluntarily travels to a state with a high positive COVID-19 test rate (defined as a rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate over a seven-day rolling average) any time after June 25, 2020 will not be eligible for New York’s COVID-19 paid sick leave benefits. This follows the announcement of a travel advisory from the governors of New York, New Jersey and Connecticut that requires travelers returning to the Tri-state area from states which meet the above criteria for a high positive COVID-19 test rate to quarantine themselves for fourteen days. Employees who are required by their employer to travel to such COVID-19 “hot spots” will still be eligible for paid leave under the New York law.

What Types of Leave and Which States Are Covered by EO 202.45?

As previously reported here and here, New York enacted a COVID-19 paid sick leave law on March 18, 2020 (the “New York COVID-19 Paid Sick Leave”) that provides paid, job-protected leave for certain employees who have been quarantined by a government-issued order as a result of COVID-19. Under the new Executive Order No. 202.45, employees will not be eligible for New York COVID-19 Paid Sick Leave if they have voluntarily traveled to any of the states subject to New York’s 14-day quarantine requirement. According to the ny.gov website, as of July 2, 2020, the following sixteen (16) states are currently subject to the 14-day quarantine requirement: Alabama, Arkansas, Arizona, California, Florida, Georgia, Iowa, Idaho, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Tennessee, Texas and Utah. Washington State was originally on the list but has since been removed. Additional states may be added to this list, and states may be removed from list, depending upon whether the states have a positive COVID-19 test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven-day rolling average.

Other Leave May Be Available

While employers will not be required to provide New York COVID-19 paid sick leave benefits to employees who have voluntarily travelled to these states, employers can require such employees to use paid leave provided under the employer’s own policies, or to take unpaid leave if no other leave is available. Paid leave may also be available under federal law if an employer has fewer than 500 employees and is covered by the federal Family First Coronavirus Response Act (FFCRA) (described here). The U.S. Department of Labor has posted an interactive online tool to help employees determine if they qualify for paid sick and family leave available under the FFCRA. Employers may also allow, or require, employees who voluntarily travel to these states to work remotely during the 14-day quarantine period.

Prior Notice to Employee Not Required

The New York COVID-19 paid sick leave law contains an exception, similar to the above-described provision in Executive Order No. 202.45, which denies paid sick leave benefits to an employee subject to an order of quarantine because the employee voluntarily travelled to a country covered by a level two or three travel health notice issued by the the Centers for Disease Control and Prevention (CDC). Notably, an employee may only be denied New York COVID-19 Paid Sick Leave if the employer, prior to the employee’s travel, notified the employee of the CDC notice and the limitations on receiving paid benefits. Executive Order No. 202.45 does not contain a similar notice requirement for travel to COVID-19 “hot spot” states.

Next Steps

Although prior notice is not required, employers who want to ensure that their employees will be able to return to the workplace after their vacations should notify employees that they will be subject to a 14-day quarantine period if they chose to travel to any of the states New York has placed on its list of COVID-19 “hot spots.” In order to avoid arguments about what types of leave employees are eligible for, employers should also advise employees that they will not be eligible for New York’s COVID-19 Paid Sick Leave if they still chose to travel to these states.

Please do not hesitate to contact any of our attorneys if you have any questions or would like additional information this Executive Order or other employment issues related to COVID-19.