With the holiday season right around the corner, many people are looking forward to celebrating the holidays with family and friends. However, as COVID-19 is still an ever-present threat, the CDC and many state and local officials are urging people to avoid traveling and celebrate with the people living in their immediate households. In response to the impending holiday season and high likelihood that people will be traveling to see family and friends, states like New York are implementing new travel advisories and quarantine requirements (as discussed below). Employers are now asking what steps they can take to reduce employee exposures and COVID-19 infections and whether employers can prohibit employees from traveling during the holidays.
New York’s New Travel Advisory and Quarantine Requirements:
New York State has implemented new changes to its COVID-19 travel advisory and quarantine requirements. Instead of adding new states to the list of states from which travelers entering New York must quarantine for fourteen (14) days, Governor Andrew M. Cuomo announced that effective November 4, 2020, travelers entering New York from any other non-contiguous state (i.e., New Jersey, Connecticut, Pennsylvania, Massachusetts, or Vermont) may “test out” of the mandatory quarantine requirements.
For travelers who were in a state for more than twenty-four (24) hours, travelers may “test out” of the fourteen (14) day mandatory quarantine requirement by:
1. Obtaining a COVID diagnostic test prior to departure from that state, within seventy-two (72) hours of departure, prior to arrival in New York.
2. Upon arrival in New York, travelers must quarantine for three (3) days and must complete the NYS Traveler Health Form online (https://forms.ny.gov/s3/Welcome-to-New-York-State-Traveler-Health-Form).
3. On the fourth day of their quarantine, travelers must obtain another COVID diagnostic test. If both tests are negative, travelers are no longer required to quarantine.
Travelers who were in another state for less than twenty-four (24) hours are not required to obtain a COVID test prior to their departure from the other state and do not need to quarantine upon their arrival in New York State. However, travelers still must fill out the NYS Traveler Health Form online and obtain a COVID diagnostic test four (4) days after their arrival in New York State.
Employers should note that essential workers are exempt from some of these requirements but must be tested on the fourth day after arriving in New York state.
Can Employers Restrict Employees Personal Travel?
While the answer to this question is not black and white, many states provide that an employee’s employment is “at will” unless the parties have a written agreement providing otherwise. This means employers may generally implement policies to ensure the safety of their employees. Before instituting a policy prohibiting or restricting employee personal travel and enforcing travel restrictions, employers should consider both practical and legal considerations.
Employers should note that in some states, like New York, employers are not permitted to take adverse action on the basis of an employee’s lawful activities that occur away from the employer’s premises. For example, in New York it is unlawful for employers to discriminate against employees for engaging in a recreational activity outside of working hours, not on the employer’s premises and without use of the employer’s property or equipment, if such activity is legal. This means that employers in New York cannot restrict their employees from traveling for the holidays, which is an otherwise legal activity.
What other steps can employers take to protect their employees?
Employers can require employees to report on their personal travel, including requiring employees to complete a questionnaire prior to returning to work inquiring about their travel and confirming they are symptom-free, and can require employees to comply with all CDC travel restrictions. This means that New York employers must monitor all employees traveling for the holidays to ensure compliance with New York State’s new travel advisory and quarantine requirements.
Employers may also want to consider requiring all employees to work remotely for a period of time after the holidays and require employees to self-monitor themselves for symptoms of COVID-19. This will reduce the risk of COVID-19 being spread throughout the workplace after employees have traveled to see family and friends.
Upon employees return to work, employers should monitor employees for signs and symptoms of COVID-19. Additionally, employers should encourage employees who suspect possible exposure to COVID-19 to self-monitor and require them to report when they are experiencing symptoms or feeling sick.
While it is impossible for employers to eliminate all risks of COVID-19 entering a workplace, employers must be diligent in ensuring that all employees to adhere to New York State’s new travel advisory and quarantine requirements. Before implementing any policies regarding holiday travel, employers should consult with their employment advisor to ensure compliance with all federal, state and local laws.