Executive Orders 202.45 (COVID-19 Leave Law, School Meals and Child Care and Gathering Limit) and 205 (Travel to NY)

Executive Orders 202.45 (COVID-19 Leave Law, School Meals and Child Care and Gathering Limit) and 205 (Travel to NY)

 

KEEPING YOU INFORMED…

Governor Cuomo recently issued Executive Orders 202.45 and 205. The following is an explanation of the most noteworthy provisions.

Additional Exclusion from the State’s COVID-19 Leave Law’s Paid Leave Benefits

Last week, Governor Cuomo issued Executive Order 205 which, among other things, effectuated a travel advisory requiring, in certain situations, individuals entering New York from high-COVID-19 transmission states (as determined using a formula)[1] to undergo a mandatory 14-day quarantine. The NYS Department of Health (“DOH”) then issued Interim Guidance regarding the travel advisory.[2] This Order and the DOH’s Interim Guidance generated a lot of confusion as well as contentions from employers with respect to the potential for employee abuse of leave time (i.e., that people will intentionally travel to the high-COVID-19 transmission states so that they can receive another two weeks off when they return to New York without charge to their accruals).

In response, Executive Order 202.45 was issued and provides (in part) for an additional exclusion from the paid sick leave and other benefits of the State COVID-19 Leave Law.[3] Specifically, effective from June 26, 2020 – July 26, 2020,[4] any employee who, on or after June 26, 2020, voluntarily travels (i.e., not for employment purposes or at the direction of his/her employer) to a high-COVID-19 transmission state (as defined by the Executive Order and as listed by the DOH), will “not be eligible for paid sick leave benefits or any other paid benefits pursuant to [the State COVID-19 Leave Law].”

This exclusion is in addition to the pre-existing exclusion for employees who return from non-employment-related travel to a country for which the CDC has issued a level two or three health notice, “… if the employee was provided notice of the travel health notice and the limitations of this [exclusion] prior to such travel.” It is unclear whether the same notice prerequisite is required for the new exclusion (i.e., for travel within the United States pursuant to Executive Order 202.45). In the absence of additional guidance from the State, at this time we recommend that you notify employees of the new exclusion in advance of their travel to the extent practicable.

Notwithstanding the exclusion, employees are, pursuant to the State COVID-19 Leave Law, still eligible to use their accruals during the quarantine period[5] or to take an unpaid leave if there are insufficient accruals. Further, employees may still be eligible for, among other things, Emergency Paid Sick Leave Act leave (pursuant to the Families First Coronavirus Response Act) if they satisfy the eligibility criteria for same. If you would like to discuss your employees’ potential leave entitlement(s) as a result of this travel advisory or the interplay of the State and federal COVID-19 leave laws, please contact us.

Continuation of School Meals and Child Care

Executive Order 202.45 provides that school districts must continue to ensure the availability of meals and child care over the summer, with an emphasis on child care serving children of essential workers. Meals may be provided by an alternative (outside) entity, but the district is responsible for ensuring that all children have access to free meals. If students do not have access through an alternative entity, the district must provide the meals. Additional information is available at: http://www.nysed.gov/common/nysed/files/programs/coronavirus/feeding-children-in-need-child-care-summer-2020.pdf

The State Education Department has indicated that school districts are expected to continue the arrangements previously made to provide child care for essential workers in accordance with their previously submitted plans. If a district must revise its plan to provide alternative child care during the summer, the district must submit the updated plan to SED by July 3 and contact COVID19@nysed.gov to notify SED of the district’s need to update its plan.

Gathering Limits Increased for Phase Four

Effective through July 26, 2020, for regions that are in Phase Four, non-essential gatherings of up to 50 people are permissible, provided that gatherings occurring indoors do not exceed 50% of the maximum occupancy limit for the indoor area; and further provided that the DOH’s social distancing, face covering, cleaning and disinfection protocols are adhered to.

If you have any questions regarding Executive Orders 202.45 or 205 and their impact on your workforce or school, please contact Alyssa Zuckerman at alz@lambbarnosky.com, Lauren Schnitzer at ls@lambbarnosky.com or one of our other attorneys by calling (631) 694-2300.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2020

[1] I.e., “… a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, will be required to quarantine for a period of 14 days consistent with Department of Health regulations for quarantine.” Executive Order 205 is available at: https://www.governor.ny.gov/news/no-205-quarantine-restrictions-travelers-arriving-new-york#:~:text=All%20travelers%20entering%20New%20York,of%20Health%20regulations%20for%20quarantine.

[2] https://coronavirus.health.ny.gov/system/files/documents/2020/06/interimguidance_traveladvisory.pdf. Note that this Guidance provides certain quarantine exceptions for “essential workers” as defined by the DOH.

[3] See our client memorandum dated April 3, 2020 for an overview of this leave law.

[4] Unless further extended by a subsequent Executive Order.

[5] Consistent with any applicable collective bargaining agreement provisions, employer policies or employer agreements addressing the use of accrued leave time.