November 04, 2020 New NYS Travel Advisory “Test Out” Protocols
KEEPING YOU INFORMED…
We are writing to advise you that on October 31, 2020, Governor Cuomo issued Executive Order 205.2, which, effective November 4, 2020, permits travelers to “test out” of the NYS Travel Advisory’s 14-day quarantine requirement upon return from a location on the NYS Travel Advisory list if certain protocols have been followed. Below are some frequently asked questions and answers related to these changes to the NYS Travel Advisory.
What are the new “test out” protocols? Per the NYS Travel Advisory website the new protocols are as follows:
For any traveler to New York State from out of state, exempting the contiguous states, the new guidelines for travelers to test-out of the mandatory 14-day quarantine are below:
- For travelers who were in another state for more than 24 hours:
- Travelers must obtain a test within three days of departure from that state.
- The traveler must, upon arrival in New York, quarantine for three days.
- On day 4 of their quarantine, the traveler must obtain another COVID test. If both tests come back negative, the traveler may exit quarantine early upon receipt of the second negative diagnostic test.
- For travelers who were in another state for less than 24 hours:
- The traveler does not need a test prior to their departure from the other state, and does not need to quarantine upon arrival in New York State.
- However, the traveler must fill out our traveler form upon entry into New York State, and take a COVID diagnostic test 4 days after their arrival in New York.
Local health departments will validate tests, if necessary, and if a test comes back positive, will issue isolation orders and initiate contact tracing. The local health department must make contact with the state where the traveler came from, to ensure contact tracing proceeds there as well. All travelers must continue to fill out our traveler form upon arrival into New York State to contribute to New York State’s robust contact tracing program.
The travel guidelines require all New Yorkers, as well as those visiting from out of state, to take personal responsibility for compliance in the best interest of public health and safety.
Do the new protocols change the “essential worker” exemption? The essential worker definition remains the same, but the return-to-work protocols for exempted essential workers has changed (although the NYS Travel Advisory website has not yet been updated to reflect this change). For example, for essential workers traveling to NYS for a period of greater than 36 hours (i.e., long term), the only requirement is that they must seek diagnostic testing for COVID-19 on the fourth day after arriving in NYS. Please refer to the November 3, 2020 “Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel” for more information.
Do I have to issue a new notification to staff advising them of the changes to the quarantine requirements? No (from a purely legal standpoint), assuming that your previous notification advised employees that they are ineligible for NYS COVID-19 Leave if they travel to a location on the NYS Travel Advisory List for non-work-related reasons and have to quarantine upon return. Notwithstanding this, as a best practice, you may want to update your notification to reflect the new “test out” option and any other updates/changes that have occurred since your last notification, especially as we head into the holiday season.
Can I require non-essential employees to take steps to “test out” of the 14-day quarantine requirement? Generally, no. There is nothing in the Executive Order (or any other law) that provides employers with that option or with any potential “consequences” for an employee’s choice to undergo the full 14-day quarantine. If you have a unionized workforce and would like to implement procedures or protocols related to “testing out” of the full 14-day quarantine period, please contact us to discuss whether you have any bargaining obligations related to same.
Do I have to pay employees who need to quarantine as a result of travel to a location on the NYS Travel Advisory List? Yes, assuming that they meet the other eligibility criteria, employees are eligible for the federal Emergency Paid Sick Leave Act leave (paid at their regular rate of pay, capped at $511/day) but not NYS COVID-19 leave benefits (as long as you notified your employees in advance about their ineligibility for the State leave, as noted above). This has not changed as a result of the new “test out” protocols.
Anything else I should be doing? For now, consider updating your COVID-19 screening questionnaire to contain a follow-up question to the one related to travel so that employees/visitors/etc. have an opportunity to provide you with additional information showing that, notwithstanding their having traveled to a location on the NYS Travel Advisory List within the past 14 days, they have “tested out” of the full 14-day quarantine requirement. There is nothing prohibiting an employer from requiring proof of the “test out” from any individual (and, for safety purposes, you should do so), as long as it is applied consistently so as to avoid discrimination or other claims.
Special Caveats for School Staff and Child Care Workers
Does this mean that school staff and child care workers can now “test out” of the 14-day quarantine requirement? Yes. Although school staff continue be ineligible for the NYS Travel Advisory’s “essential worker” exemption, the new Interim Guidance provides that,
Teachers, school employees, and child care workers must quarantine for a minimum of 3 days after returning to New York from a designated state or country due to the nature of education and child care services and the risk and difficulty of adherence to the guidelines that govern such exemptions, and must be tested on day 4 after arriving, pursuant to EO 205.2. Although such workers are essential, the travel advisory exemption for essential workers does not apply to teachers, school employees, or child care workers, due to the sensitivity of these congregate settings.
As a result of this significant change permitting school staff and child care workers to “test out” of the full 14-day quarantine period, we recommend that you update and resend any prior notification(s) to your staff regarding the NYS Travel Advisory. Please contact us if you would like assistance preparing the updated notification.
Please note that the above language provides for a minimum three day quarantine upon return to NYS from a location on the NYS Travel Advisory List and mandatory COVID-19 testing on day four. Therefore, schools and child care providers may require their employees who are quarantining as a result of returning from out-of-State travel to be tested on day four. In accordance with Executive Order 205.2, these employees cannot return to work until they receive a negative COVID-19 test. If you would like to implement procedures or protocols related to “testing out” of the 14-day quarantine period, we recommend that you contact us to discuss potential bargaining obligations related to same.
If you have any questions regarding the above, or would like to discuss this topic in more detail, please contact Alyssa Zuckerman 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.
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© Lamb & Barnosky, LLP 2021
 This information is available at: https://coronavirus.health.ny.gov/covid-19-travel-advisory. Please note that the protocols are copied verbatim from the website and are similar, but not identical, to the accompanying November 3, 2020 “Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel,” which is available at: https://coronavirus.health.ny.gov/system/files/documents/2020/11/interm_guidance_travel_advisory.pdf.
 As a reminder, in accordance with Executive Order 205 (and 205.2), any violation of a quarantine or isolation order issued to an individual pursuant to the Department of Health’s travel advisory may result in a civil penalty of up to $10,000 or imprisonment for up to 15 days.