On June 25, 2020, a New York State travel advisory went into effect for anyone traveling to states that have a significant degree of community-wide spread of COVID-19. Specifically, the advisory requires individuals returning from travel to these “restricted” states to self-quarantine for 14 days upon arriving in New York State. The advisory applies equally to New York residents and non-resident visitors, although there are exceptions for individuals passing through a “restricted” state for a limited duration (i.e., less than 24 hours) in the course of travel to another state, and for essential workers who must travel to those states as part of their job duties.
Guidance issued by Governor Cuomo in support of this travel advisory states that New York employees who engage in voluntary, non-essential travel to any of the “restricted” states will not be eligible for paid sick leave benefits under New York’s COVID-19 paid sick leave law. However, an employee subject to the travel advisory and subsequent mandatory self-quarantine requirements would most likely be entitled to leave under federal Families First Coronavirus Response Act (FFCRA), which entitled employees to up to 80 hours of emergency paid sick leave if they are “subject to a federal, state, or local quarantine order related to COVID-19 or are caring for an individual subject to such a quarantine order.”
The New York State travel advisory does not directly state that taking FFRCA emergency paid sick leave is prohibited if someone violates the travel advisory, and it seems unlikely that a state order would have the power to override an employee’s rights under a federal law. Therefore, while NYS has not yet issued any specific guidance on this subject, at this point it is safe to assume that FFCRA emergency paid sick leave would still be available to employees who return to NY from a restricted state.
It is important to note that if an employee is eligible for FFCRA emergency paid sick leave, an employer cannot require the employee to use their PTO first. The only exceptions to the employee’s eligibility for FFCRA emergency paid sick leave would be if the employee is able to telework and receive his/her regular wages, or the employee has already exhausted his/her 80-hour allotment of this leave. In that case, the employer can require an employee who cannot telework to use any available PTO or take the time off unpaid.
