On June 24, 2020, the governors of New York, New Jersey and Connecticut announced that travelers entering their states from certain states with high positive coronavirus test rates must quarantine for 14 days. The tri-state area joins a growing number of states and countries that have adopted quarantine rules even as, one day earlier, the US Department of Justice filed a Statement of Interest in litigation challenging the constitutionality of Hawaii’s quarantine order.

State quarantine orders, which vary based on transmission-related metrics from other jurisdictions, create another layer of complexity for businesses whose employees cross state lines. Businesses within the tri-state area with workforces that live outside it must be particularly mindful of these new rules, as should businesses whose employees are engaging in other business-related travel. This alert examines the orders adopted by New York, New Jersey and Connecticut to answer three questions: (1) Who must quarantine? (2) What are the rules when in quarantine? And (3) How will quarantine rules be enforced?

A. Who must quarantine?

Effective June 25, 2020, Governor Andrew Cuomo’s Executive Order No. 205 directs the New York Department of Health to issue a travel advisory that all travelers to New York State from a state with a high positive test rate will be required to quarantine for 14 days—including New York residents returning to the state. Connecticut Governor Ned Lamont’s Executive Order No. 7BBB gives similar instructions to the Connecticut Department of Public Health. New Jersey Governor Phil Murphy has not issued a formal order but announced that the state will follow the same rules. New Jersey also released a Self-Quarantine for Travelers FAQ providing guidance on the quarantine requirement.

The orders and FAQs identify restricted states as those with “a positive test rate higher than 10 per 100,000 residents or higher than a 10% test positivity rate, over a seven-day rolling average.” According to the New York Department of Health’s website, the states that currently meet this criteria are:

• Alabama
• Arkansas
• Arizona
• California
• Florida
• Georgia
• Iowa
• Idaho
• Louisiana
• Mississippi
• Nevada
• North Carolina
• South Carolina
• Tennessee
• Texas
• Utah

The states have pledged to analyze virus metrics weekly to update this list, and data used to analyze levels of infection for all 50 states will be publicly available.

New York’s and Connecticut’s advisories apply to “all travelers” coming from restricted states, regardless of their reason for travel. New Jersey expressly exempts migrant workers and individuals traveling to the state for business. New York and Connecticut’s respective quarantine rules include narrow exceptions for “essential workers,” a category defined by the states’ previous executive orders. Connecticut’s FAQs state that workers traveling from impacted states to Connecticut who work in critical infrastructure as designated by the Cybersecurity and Infrastructure Security Agency (CISA) are exempted from the quarantine advisory. As explained further below, New York—which has not adopted CISA’s guidance in its essential workers definitions—has issued less-restrictive quarantine rules for essential workers and first responders. New Jersey’s guidance does not address essential workers.

New York’s quarantine rules also exempt individuals who only pass through a restricted state, spending less than 24 hours there. For example, a flight layover or a stop at a rest stop in a restricted state for less than 24 hours would not trigger quarantine requirements. In FAQs, both Connecticut and New Jersey also say that the advisory does not apply to travelers with a flight layover in a restricted state.

On June 26, 2020, Governor Cuomo also issued Executive Order No. 202.45, which disqualifies from New York’s paid sick leave or other benefits any employee who voluntarily travels (i.e., nonbusiness travel) to one of the restricted states or another country for which the Centers for Disease Control and Prevention has issued a level two or three travel health notice. By contrast, New Jersey’s FAQs state that qualified workers may use earned sick leave time for the quarantine period.

B. What are the rules when in quarantine?

Both New York and Connecticut’s orders grant their respective departments of health the authority to make rules for those in quarantine. Travelers planning to quarantine after arriving in the tri-state area should review the specific rules of the state in which they will stay.

So far, the New York Department of Health has issued the most detailed rules in its Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel. Among other things, the New York rules require that:

• The individual must not be in public or otherwise leave the quarters that they have identified as suitable for their quarantine.
• The individual must be situated in separate quarters with a separate bathroom facility for each individual or family group. Access to a sink with soap, water, and paper towels is necessary. Cleaning supplies (e.g., household cleaning wipes, bleach) must be provided in any shared bathroom.
• The individual must have a way to self-quarantine from household members as soon as fever or other symptoms develop, in a separate room(s) with a separate door. Given that an exposed person might become ill while sleeping, the exposed person must sleep in a separate bedroom from household members.
• Food must be delivered to the person’s quarters.
• Quarters must have a supply of face masks for individuals to put on if they become symptomatic.
• Garbage must be bagged and left outside for routine pickup. Special handling is not required.
• A system for temperature and symptom monitoring must be implemented to provide assessment in place for the quarantined persons in their separate quarters.
• Nearby medical facilities must be notified if the individual begins to experience more than mild symptoms and may require medical assistance.
• The quarters must be secure against unauthorized access.

In contrast to New York’s detailed rules, New Jersey and Connecticut have issued brief guidance. New Jersey’s FAQs simply require travelers to self-quarantine at their home, a hotel or other temporary lodging. Unlike New York, New Jersey will allow individuals to leave quarantine to seek medical care or obtain “food and other essential items.” Connecticut does not provide any rules for quarantine beyond encouraging individuals to self-quarantine in their home or a hotel.

First responders and essential workers are exempted from quarantine rules in New York but must still adhere to guidance that varies depending on how long the person plans to be in New York.¹ Essential workers traveling to New York for less than 12 hours must:

• Stay in their vehicle and/or limit personal exposure by avoiding public spaces as much as possible.
• Monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces.
• To the extent possible, avoid extended periods in public, contact with strangers, and large congregate settings.

Essential workers in the state for less than 36 hours must:

• Monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces.
• To the extent possible, avoid extended periods in public, contact with strangers, and large congregate settings.

Essential workers in the state for more than 36 hours must:

• Seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive.
• Monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for a minimum of 14 days.
• To the extent possible, avoid extended periods in public, contact with strangers, and large congregate settings for a period of at least seven days.

The New York Commissioner of the Department of Health may also grant an exemption to the quarantine restrictions based on “extraordinary circumstances, which do not warrant quarantine,” although the exemption may still entail some restrictions.

C. How will quarantine rules be enforced?

New York appears poised to take a more prescriptive approach than the other two states. Governor Cuomo’s order authorizes the New York Department of Health or local health officials to enforce quarantine rules and establishes a penalty of up to $10,000 for violations of a quarantine or isolation order. New York’s guidance states that individuals must take personal responsibility for following these rules, and it provides contact information for reporting quarantine violations. In addition, Governor Cuomo said that the state will use personal information collected at the time an individual arrives in the state to conduct “random checks” for compliance. By contrast, New Jersey’s and Connecticut’s respective publications have not mentioned enforcement. New Jersey’s guidance states that self-quarantine “is voluntary, but compliance is expected.” Travelers do not need to check in with public health officials. Connecticut’s guidance similarly states that “[i]t will be up to individuals to abide by the advisory.”

D. Conclusion

With some uncertainty concerning how aggressively state and local authorities will enforce these quarantine rules, employers should be mindful of them—particularly businesses that have just recently reopened or will soon reopen their workplaces. In order to reopen, employers in New York and Connecticut had to certify compliance with their respective states’ present and future coronavirus-related rules and restrictions. Employers should therefore consider tracking business-related travel and instituting protocols for business travel to a restricted state, as well as requiring employees to notify them if they travel to a restricted state for any reason.

Moreover, as with other state executive orders, it’s likely that these quarantine orders will be challenged in court. The US Department of Justice filed a Statement of Interest in litigation challenging Hawaii Governor David Ige’s order mandating a 14-day quarantine for individuals entering that state. The federal government argues that the mandatory quarantine violates the constitutionally protected privileges and immunities of the plaintiffs, residents of Nevada and California.

WilmerHale will continue to track developments and is available to provide specific guidance on how to comply with this new regulatory landscape. We invite employers to start by reaching out to the authors of this alert or their regular contacts at WilmerHale.