In an Executive Order issued late Friday night, Gov. Andrew Cuomo’s office clarified that individuals who voluntarily travel to states with significant coronavirus spread will not be entitled to paid quarantine leave from work under New York State law when they return to New York.

The clarification, published in Executive Order 202.45, comes a day after the State implemented a “travel advisory” requiring individuals to quarantine for 14 days if they enter New York after traveling to states that are experiencing high rates of community spread of coronavirus. Those states currently include Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah. States may be added or removed based upon a seven day rolling average of either positive tests in excess of 10 percent or, if the number of positive cases exceeds 10 per 100,000 residents.

Order Modifies New York State COVID-19 Paid Sick Leave Law

The clarification modifies New York State’s COVID-19 Paid Sick Leave Law, enacted at the outset of the pandemic in March. Under that law, qualifying employees are entitled to paid quarantine leave (or “sick leave”) if they are subject to a mandatory or precautionary order of quarantine. By law, “quarantine orders” that can qualify employees for leave must be issued by a government entity, such as a local health department or the state itself.

The issuance of the Governor’s travel advisory order appeared to constitute an “order of quarantine” that would entitle an employee to paid quarantine leave upon return from a high-transmission state. Paradoxically, this would have incentivized individuals to travel voluntarily to these states, which was likely not the intent of the travel advisory order.

To avoid that interpretation, the clarification order issued on Friday night makes clear that an employee will “not be eligible for paid sick leave benefits” under the state’s COVID-19 Paid Sick Leave Law if the employee “voluntarily travels” to a state covered by the travel advisory after June 25, 2020 (the date the travel advisory went into effect).

The modification brings domestic travel considerations in alignment with foreign travel. Under the COVID-19 Paid Sick Leave Law, employees were already ineligible for paid sick leave if they voluntarily traveled to a foreign country subject to a CDC travel notice.

Interplay With Federal Leave Law Unclear

While the order clarifies employees’ leave rights under New York State law, it remains unclear what impact it may have on leave rights under Federal law. Under the Federal Families First Coronavirus Response Act (FFCRA), employees are similarly eligible for paid sick leave if they are subject to a government-issued quarantine order. New York State’s government, however, cannot clarify leave eligibility under Federal law. Given the rapid clarification from New York, a similar clarification from the U.S. Department of Labor is possible.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.