Tri-State Travel Advisory Updates Continue; Pennsylvania Clarifies its Travel Advisory is Not Mandatory

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Seyfarth Synopsis: New York, New Jersey, and Connecticut have updated the list of states subject to 14-day quarantine provisions, and New York has begun implementing enforcement measures.  Meanwhile, Pennsylvania has clarified that its similar, but separate, travel advisory is not mandatory, expanded the list of relevant states, and issued accompanying guidance.

In what has become a weekly occurrence since the governors of New York, New Jersey, and Connecticut first issued a joint travel advisory in June, calling for a 14-day quarantine for individuals who travel into their states from states with significant recent spikes in positive COVID-19 tests, the list of affected states has been updated and now includes 22 states as of Tuesday, July 14.

As of this writing, the affected states are:

• Alabama
• Arkansas
• Arizona
• California
• Florida
• Georgia
• Iowa
• Idaho
• Kansas
• Louisiana
• Minnesota
• Mississippi 
• New Mexico
• North Carolina
• Nevada
• Ohio
• Oklahoma
• South Carolina
• Tennessee
• Texas
• Utah
• Wisconsin

Specifically, since we last reported on the list of affected states, Minnesota, New Mexico, Ohio, and Wisconsin have been added to the list, while Delaware was the “First State” to be removed. The respective Departments of Health in New York, New Jersey and Connecticut will continue to monitor national testing results and will issue revised lists as appropriate, though the pattern has been to update the lists every Tuesday thus far.

Additionally, as we noted in our first report, the prospects for enforcement appear to differ among the three states, with New Jersey and Connecticut calling for voluntary compliance, while New York has moved to enforce the quarantine requirement by issuing heavy fines in the event of non-compliance. Consistent with these efforts in the Empire State, Governor Cuomo on July 13 tweeted  that he is “serious about enforcing this quarantine,” and that “[o]ut of state travelers from designated high-COVID states must provide their contact information upon arrival.” Per the state’s Traveler Health Form, it appears that information on such travelers’ itinerary is required as well.

New York plans to enforce this requirement by having airlines distribute the form at some point before arriving in New York, and stationing enforcement officers in airports at the gates of flights arriving from affected states, where they will request proof of the completed form as passengers disembark their flights. Those who do not complete the form prior to leaving the airport will face a $2,000 fine “and may be brought to a hearing and ordered to complete mandatory quarantine.” For more information, see the state’s formal announcement of the enforcement effort here.

In another departure from uniform enforcement of the travel advisory among the three states, New Jersey’s travel advisory FAQs provide that use of paid sick leave pursuant to the New Jersey Earned Sick Leave Law is “possibl[e],” for an employee quarantining upon return to New Jersey from an affected state, given that the law as amended in response to COVID-19 permits use of earned leave “when, during a state of emergency declared by the Governor, or upon the recommendation, direction or order of a health care provider or the Commissioner of Health or other authorized public official, the employee undergoes isolation or quarantine as a result of a suspected exposure to a communicable disease and a finding by the provider or authority that the employee’s presence in the community would jeopardize the health of others.”

In contrast, employees quarantining upon returning to New York after voluntary travel to an affected state are ineligible for paid leave benefits generally provided to employees subject to an order of quarantine under New York’s COVID-19 emergency leave mandate, pursuant to an executive order signed by Governor Cuomo on June 26. Connecticut, which has neither amended its existing paid sick leave mandate in response to COVID-19 nor passed a COVID-19 specific paid sick leave mandate, has remained silent on the impact a travel advisory quarantine would have on employees’ use of paid sick leave.

Relatedly, albeit not in coordination with Connecticut, New Jersey, and New York, neighboring Pennsylvania recently issued a travel advisory of its own on July 2, which we previously discussed here. The ambiguous language from the initial advisory sparked confusion as to whether the advisory was a mandate or a recommendation. On July 10, the Pennsylvania Department of Health revised the advisory to (1) make clear that it is not mandatory and (2) add four additional states -- Delaware, Iowa, Kansas and Oklahoma -- to the list of states with concerning rates of COVID-19. Unlike the Tri-State advisory, Pennsylvania has not explained its method of determining which states are included on its advisory. Additionally, the Pennsylvania DOH issued guidance in the form of FAQs to address a bevy of questions relating to the non-mandatory advisory. Of note, the guidance emphasizes that the administration does not “dictate how businesses should implement the quarantine recommendation,” though “DOH recommends implementing businesses review the eligibility criteria in the Families First Coronavirus Response Act and provide flexible leave and work from home policies to accommodate the recommendation,” as appropriate. In short, the administration leaves it to employers to create and implement appropriate policies to ensure the safety of its workplace without requiring employers to enforce this travel quarantine advisory.

Impacted employers should reach out to the authors of this Legal Update or their Seyfarth contact to discuss implementation of this advisory in the workplace. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.