Navigating Employee Travel in a Maze of State and Local Quarantine Orders and Travel Advisories

Originally published by Caroline B. Burnett and Paul Evans.

The latest wrinkle for employers managing employees in the time of COVID-19 relates to employee travel. Many employers are coming to us asking how to navigate the patchwork of US state and local quarantine restrictions and / or recommendations for persons who travel to hotspots and then have to quarantine when they return home.

Questions abound, including whether employers can just test employees for COVID-19 to avoid a 14-day quarantine period, and whether employers have to pay employees to follow a quarantine order when their employees voluntarily travel to a hotspot location. We provide background and answer those questions below.

 

A Web of Disparate Regulation

Currently 21 states and the District of Columbia have some form of a quarantine requirement, or a lighter quarantine “recommendation.” Some notable jurisdictions with requirements include:

• New York/New Jersey/Connecticut: The governors of these three states issued a joint incoming travel advisory (effective June 25, 2020) requiring that all individuals traveling from states with significant community spread of COVID-19 quarantine for a 14-day period from the time of last contact within the identified state. The quarantine applies to any person arriving from a state with a positive test rate higher than 10 per 100,000 residents over a 7-day rolling average or a state with a 10% or higher positivity rate over a 7-day rolling average. As of August 11, there are a total of 33 states and territories now on the NY/CT/NJ list, including California, Illinois, Texas, and Florida, as well as Puerto Rico. This list changes frequently based on states’ COVID-19 metrics. For instance, on August 4, Rhode Island was added to the list, and Delaware and Washington, D.C. were removed. On August 11, Rhode Island was removed, along with Alaska, Ohio, New Mexico and Washington, but Hawaii, South Dakota and the Virgin Islands were added. Be sure to check the list before heading to the NY/NJ/CT tri-state area, especially since on August 5, New York City began setting up checkpoints at NYC’s major bridges, tunnels, and other sites to enforce the travel order.
• Florida: As of August 11, travelers from areas with “substantial community spread” including New York, New Jersey, and Connecticut are required to quarantine for 14 days when they enter Florida. Florida actually had a checkpoint along the Florida-Georgia border and the Florida-Alabama border in March to get incoming travelers from the New York/New Jersey/Connecticut tri-state area and Louisiana to self-quarantine, but as of July 20, both of those checkpoints had been discontinued.

Other states, including California, Texas, and Illinois, have no quarantine requirements at this time for individuals entering from other states. Texas had one earlier in the pandemic, but Governor Greg Abbott ended Texas’ quarantine requirements for out-of-state travelers as of May 21. Though Illinois itself has no restrictions, Chicago does, restricting entry from 20 states and territories as of August 11. Washington, D.C. is another municipality with restrictions. As of August 10, Washington, D.C. requires those who travel for non-essential work from 29 high risk states to quarantine.

Common Exceptions

Generally, the travel orders require travelers to quarantine for 14 days after entering the state or municipality, but there are some exceptions. Many have exceptions for:

• “Passing through” travel (i.e., a connecting flight or driving through to another state)
• Short term visits (less than 24 hours) to either the hot spot state or the quarantine state
• Business trips
• Essential / critical infrastructure workers (e.g. NY’s travel quarantine contains exceptions for critical sector workers traveling to NY for work. The guidance requires essential workers planning to stay in NY for longer than 36 hours to get a COVID-19 diagnostic test within 24 hours of arrival to ensure they are not positive, but otherwise generally allows essential workers to enter NY without quarantine. Likewise, in Massachusetts workers designated by the federal government as essential critical infrastructure workers are exempt from the directive to self-quarantine for 14 days if traveling to Massachusetts for work purposes.)

Some except the state’s own residents-so people who live in the state, travel to a hotspot, and then return are not required to quarantine. In addition, several travel quarantines exempt surrounding states when travel over state lines is common. For instance, Washington D.C.’s travel quarantine order exempts travel from Maryland and Virginia. Maine, which has one of the country’s broadest travel quarantine orders requiring travelers from all states to quarantine for 14 days, excepts residents of the nearby states of the New York/New Jersey/Connecticut tri-state area, New Hampshire, and Vermont.

Penalties with Bite

Though enforcing them may be difficult, some of the possible penalties for violating the travel orders have bite.

• New York’s order imposes 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.
• In Connecticut, failure to self-quarantine or complete the required Travel Health Form may result in a civil penalty of $1,000 for each violation.
• Violators of Chicago’s order can be fined $100-$500 per day, up to $7,000.
• Washington, D.C. imposes a fine of $5,000 or 90 days in jail.
• Hawaii tops Washington, D.C.’s possible jail time with a fine of up to $5,000 and / or one year of imprisonment.

Testing in Lieu of Quarantine

Some states’ orders are silent as to whether COVID-19 testing is a viable alternative, failing to provide any guidance regarding whether COVID-19 tests can serve as an appropriate alternative. Other states’ orders specifically indicate that testing is not a viable alternative. On the other hand, there are states that do allow testing in lieu of a 14-day quarantine period.

• As of August 11 in Alaska, non-residents do not have the option of a 14-day quarantine period. Instead, they must either 1) arrive with proof of a negative COVID-19 Polymerase chain reaction (PCR) test taken within 72 hours prior to departure, 2) arrive with proof of a COVID-19 PCR test taken within 72 hours prior to departure, or 3) pay $250 at an airport site for a test. If non-residents are waiting for results they must self-quarantine until their result is returned. If non-residents have proof of a negative result they still must follow strict social distancing requirements for 14 days or until a second test is taken and negative results received at 7-14 days after arrival. Residents can test at airport sites for free upon arrival, and must self-quarantine until results are returned. Even with a negative test result, residents must follow strict social distancing for 14 days or until a second test is taken and negative results are received at 7-14 days after arrival. Residents still have the option of following a 14-day quarantine period instead of testing.
• Starting September 1, residents and visitors traveling to Hawaii from out of state will be able to present a negative COVID-19 Nucleic Acid Amplification Test (NAAT) test taken within 72 hours of departure in lieu of a 14-day quarantine. The FDA-approved NAAT test from a CLIA-certified laboratory will need to be taken prior to arrival, because unlike Alaska, Hawaii does not provide testing options at the airport.
• In Maine, out-of-state travelers can present a recent negative COVID-19 PCR test taken within 72 hours of arriving in Maine to avoid a 14-day quarantine.
• In Rhode Island, out-of-state visitors and Rhode Island residents traveling to Rhode Island from parts of the country with a positive coronavirus test rate of 5% or higher can avoid a 14-day quarantine requirement by presenting a negative COVID-19 test taken within 72 hours of arrival.

The key takeaway for employers: know the local jurisdiction’s rules and track when and how you can test your employees in order to avoid a quarantine requirement.

The bottom line regarding travel quarantine orders: follow the applicable orders and check regularly for updates.

Our 50-state Reopening Tracker includes state-specific information regarding travel restrictions. Be certain to check for applicable local orders as well.

Pay for Employees Who Must Quarantine After Travel to Hotspot Locations: Voluntary vs. Involuntary Travel

     Voluntary Travel

If employees have to quarantine after voluntary travel to hotspot locations, whether employers have to pay employees during the quarantine period depends on the jurisdiction and the law that applies to the leave being sought. For instance, soon after New York State implemented its travel advisory, Governor Cuomo clarified in an executive order (Executive Order 202.45) that individuals who voluntarily travel to hotspot states will not be entitled to paid quarantine leave from work under New York State law when they return to New York. The order amended New York’s paid sick leave ordinance (enacted in March shortly after the start of the pandemic) to make it clear that an employee is not eligible for paid sick leave benefits under the state’s COVID-19 Paid Sick Leave Law if the employee voluntarily travels to a state covered by the travel advisory after June 25, 2020 (the date the travel advisory went into effect).

It’s not clear, though, if the same applies to an employee who seeks paid leave during their quarantine period under the Families First Coronavirus Relief Act (FFCRA). Eligible employees can take up to two weeks (80 hours) of paid leave at the employee’s regular rate of pay under the Emergency Paid Sick Leave Act (EPSLA) provision of the FFCRA for a qualifying reason, including when the employee is unable to work or telework because the employee is quarantined (pursuant to a federal, state, or local government order or the advice of a health care provider). On its face, it appears the FFCRA would apply because the employee would be quarantining pursuant to a federal, state, or local government order.

However, an argument can be made that the FFCRA does not apply. The FFCRA does not apply when employees voluntarily choose not to work (i.e. if an employee is anxious about contracting COVID-19 at work and chooses to stay home). In that instance, the employee is not eligible for FFCRA paid leave under the guidance issued by the Department of Labor. Here, the situation is similar: an employee voluntarily travels to another jurisdiction, knowing they will have to quarantine, which is essentially a choice not to work for that 14-day quarantine period. Using this reasoning, the employer should not have to pay employees voluntarily traveling to hotspots.

     Involuntary Travel

On the other hand, generally, if employers require employees to travel for work, those employees will be eligible for either state or local paid leave or paid leave under the FFCRA, because as a consequence of being required to travel for work employees then have to quarantine on their return home. There also might be an obligation for employers to pay employees for the time they have to spend in quarantine after traveling for work even if they’re not eligible for this paid sick leave, but this is a state-by-state determination depending on the definition of compensable work under applicable state law.

When Employees Travel to Jurisdictions with “Recommendations”

There are some states that have recommended (as opposed to required) travel quarantines. For instance, on July 20, Kentucky Gov. Andy Beshear issued a travel advisory requesting that visitors from nine states and Puerto Rico self-quarantine for 14 days upon arrival, but the advisory is not a requirement. In Pennsylvania, as of August 6, it is recommended that travelers from 22 states quarantine for 14 days upon arrival in the state, but again, there’s no requirement.

In that situation, since the employee is not required by law to quarantine, companies must determine what is best for their workplace.

• Check any specific state or local laws that may affect the employee’s leave options if the employee chooses to follow the recommendation.
• If there is nothing that applies, most likely the employer is not required to pay an employee who voluntarily follows the recommendation, but consider allowing the employee to take any accrued paid leave or other applicable leave if it won’t disrupt the business.
• If the employee comes to work and has symptoms, follow the company’s regular protocol for an employee showing symptoms of COVID-19: send the employee home, ask the employee to monitor symptoms and seek medical care if necessary, apply contact tracing if necessary, and notify the employee of applicable leave options. The same applies if the employee returns and discloses (either in conversation or through the regular screening protocol) they were in close contact (within 6 feet of distance for 15 minutes or more) with someone who was positive or presumed positive for COVID-19.
• Consider following the CDC’s general guidelines regarding travel to assess whether the employee should self-isolate, including considerations such as whether the individual was able to socially distance while traveling, whether the employee attended a mass gathering, or other activities that increase the risk of contracting the virus.
• Otherwise, require the employee to follow the safety and hygiene protocols all employees are required to follow, such as screening for symptoms before entering the workplace, wearing a cloth face covering, following social distancing protocols in the workplace, and washing hands or using hand sanitizer frequently.

We recommend requiring employees to notify the company if they are traveling out of the region, particularly if to a COVID-19 hotspot. In fact, many jurisdictions already require employers to conduct symptom / travel surveys as part of reopening, so requiring employees to tell the company if they have been to particular hotspots should not trigger legal liability.

Practical Guidelines for Field Employees Required to Travel as Part of Their Duties

There are practical tips employers should keep in mind-and remind their employees about-when considering sending employees to hotspots for business-related travel.

• Avoid employee travel to the extent feasible, especially if alternatives to travel such as Zoom calls are viable.
• If travel is required, make sure you understand the specific requirements for quarantine and what the exceptions are. Be sure to comply with the recommendations and requirements for each state / county / city visited, including any exceptions permitting essential workers / critical infrastructure workers to travel.
• Make sure your employees are being smart when they travel. Avoid all prolonged contact, including meals, social visits, etc. Require employees to use face coverings and adhere to social distancing at all times.
• Provide the employee with a travel letter authorizing the employee to travel and outlining the employee’s obligations and restrictions during travel.
• Try to limit travel to less than 24 hours if possible.
• Consolidate trips to the extent possible.
• This is a patchwork of state / local / municipal laws. They are changing every day. Have local business leaders stay informed, and keep workforce and managers informed. Require local business units to continuously monitor and update applicable restrictions and exceptions given the near constant change.

For assistance navigating the issues arising as a result of the complex web of local and state travel restrictions, contact your Baker McKenzie employment lawyer.

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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