November 05, 2020 Updated Information Regarding the New NYS Travel Advisory “Test Out” Protocols
KEEPING YOU INFORMED…
As a follow up to our November 4, 2020 memorandum, we are writing to advise you that New York State has now eliminated its Travel Advisory List and instead will be applying its new quarantine protocols to any travel to states/territories that are not contiguous to NYS as well as all countries for which the CDC has issued a Level 2 or 3 Travel Health Notice (i.e., except for those countries listed on the NYS Travel Advisory website) (a “Travel Advisory-covered location”).
As a result, here is an updated Q&A related to the 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 have changed (although the NYS Travel Advisory website has not yet been updated to reflect this change). For example, for essential workers traveling from a Travel Advisory-covered location 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. More information is available in the November 3, 2020 “Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel.”
Do I have to issue a new notification to staff advising them of the changes to the quarantine requirements? We recommend that you send a revised notification to your employees notifying them that they are ineligible for NYS COVID-19 leave as a result of non-work related travel to a Travel Advisory-covered location and regarding the new “test out” option. This is especially important as we head into the holiday travel 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 quarantine for the full 14-day period. 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 non-work-related travel to a Travel Advisory-covered location? 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 revise the question about out-of-State travel to address the expansion of the quarantine requirement and add a follow-up question so that employees/visitors/etc. have an opportunity to provide you with additional information showing that, notwithstanding their having traveled to a Travel Advisory-covered location 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 to 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.
The new “test out” rules provide for a minimum three day quarantine upon return to NYS from a Travel Advisory-covered location 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 a Travel Advisory-covered location 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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 The contiguous states are Pennsylvania, New Jersey, Connecticut, Massachusetts and Vermont.
 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.