COVID-19 Tri-State Area

Tri-State Announcements & Updates

New York

September 6, 2021 Update:

Governor Kathy Hochul Announces Designation of COVID-19 as an Airborne Infectious Disease

Governor Kathy Hochul announced that the health commissioner has designated COVID-19 a highly contagious infectious disease that poses a serious risk of harm to public health.

What Does This Mean for Employers?

  • Employers are now required to implement their previously prepared Prevention Plan.
  • The plans adopted must address the safety measures outlined in the Model Prevention Standard on the DOL Website resources, including but not limited to:
    • Employee health screenings
    • Masking
    • Social distancing
    • Workplace hygiene stations
    • Workplace cleaning protocol
    • Quarantine protocol
    • Building airflow technology
  • Employers should have distributed the work safety plan AND posted the plan in a prominent location at each worksite.
  • The NYS HERO Act includes anti-retaliation protections.
  • All employers, regardless of size, are now required to implement their workplace safety plan to help protect workers from COVID-19.

Click here to view the reference sheet distributed to our clients in July.

June 17, 2021 Update:

New York State Lifts Mandatory Industry Specific COVID-19 Guidelines Upon Reaching 70% Adult Vaccination Goal

According to the State’s June 15, 2021 press release, the health guidance and New York Forward industry specific guidelines, enacted at the beginning of the COVID-19 pandemic, and updated frequently throughout, are no longer controlling, effective immediately. The preexisting guidance on “social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing” is no longer mandatory in most commercial settings, with one key exception. The lifting of restrictions applies to most sectors, including retail, real estate, offices, food services, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services.

One key rule remains in place, however. Masks are still required for those who are unvaccinated, as New York is still following CDC recommendations.

The State’s health guidelines also remain in place for large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings per CDC guidelines. “Large scale indoor event venues” are those indoor venues that can hold more than 5,000 attendees. Even those locations will enjoy some relief, however, as masking and social distancing requirements can be eliminated for fully vaccinated workers and visitors. Further, those who have tested negative in a recent COVID-19 test need not adhere to masking and social distancing guidelines, allowing large indoor venues to open at 100% capacity if all attendees are either fully vaccinated or provide proof of a negative test.

Counties, cities, and businesses may still choose to implement their own restrictions or continue to apply some or all of the industry-specific guidelines. The State made clear that businesses are authorized to require social distancing and masking if they choose, regardless of vaccination status, as long as any mask requirements remain in compliance with any applicable state and federal laws, such as the Americans with Disabilities Act.

Separately, although the NY Forward Safety Plan is no longer required, employers should consider the HERO Act’s impending requirement for safety protocols, as discussed here, and incorporate the DOL’s model plan or a compliant plan in accordance with the Act.

July 7, 2021 Update:

New York State Passes Significant Amendments to the HERO Act

On June 7, 2021, the New York State legislature amended certain provisions of the HERO Act which, as we previously reported, requires all employers in New York to adopt a prevention plan to protect against further spread of COVID-19 and other airborne infectious diseases in the workplace. A detailed summary of the amendments is below.

Effective Date

On the evening of July 6, 2021, the NYS Department of Labor (DOL) published the long awaited “Airborne Infectious Disease Exposure Prevention Standard” (Standard), a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry specific model prevention plans as well. These are now available on the DOL’s website. The model plans are currently available in English, but the website states that they will also be available in Spanish soon, as required by statute.

Private employers in New York State now have 30 days, or until Aug. 5, 2021, to either adopt one of the model plans or develop an alternative plan that meets or exceeds the requirements in the Standard. Employers that choose to develop an alternative plan must adopt a plan pursuant to an agreement with the collective bargaining representative (if any), or where there is no collective bargaining representative, with meaningful participation of employees, for all aspects of the plan. The alternative plan must be tailored and specific to the hazards in the specific industry and worksites of the employer.

Notably, although employers are required to adopt a compliant airborne infectious disease exposure prevention plan, such plans only go into effect when the New York State Commissioner of Health designates an airborne infectious disease as a “highly contagious communicable disease that presents a serious risk of harm to the public.” The DOL’s website currently provides that as of the current date, no such designation has been made, and therefore the airborne infectious disease prevention plans are not currently required to be in effect.

Employers should carefully review the Standard and the applicable model prevention plan(s) and determine whether to adopt one of the model plans or develop and adopt a compliant alternative prevention plan.

June 8, 2021 Update:

New York State Updates COVID-19 Office Rules as Vaccination Numbers Continue to Rise

On June 8, 2021, the New York State Department of Health released updated interim guidance for office-based workplaces that removes significant prior restrictions. This new guidance comes on the heels of Governor Andrew Cuomo’s recent announcement that once 70% of adult New Yorkers have received at least the first dose of the COVID-19 vaccine, almost all applicable guidance will become optional, except that unvaccinated individuals still need to wear face coverings and maintain social distancing. According to Governor Cuomo, New York is expected to hit the 70% threshold during the week of June 14, if not earlier.

The updated Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency (Office Guidelines) represents the most substantive overhaul of New York’s guidance to office-based workplaces since it was first implemented last year, including updates to prior guidance on physical distancing, face coverings, workplace activity, reopening processes, and screening/testing. The most significant changes are outlined below.

Screening and Testing

Perhaps most significantly, the Office Guidelines no longer mandate a daily health screening questionnaire for employees reporting to work at an office. While employers are still required to implement health screenings, they may meet the screening requirement using signage at points of entry, by email/website, by telephone, or by electronic survey.

A screening sign or procedure should state that an employee should not enter the office if they (1) are currently or have recently (within the last 48 hours) experienced symptoms of COVID-19; (2) have had close contact (or proximate contact) in the last 10 days with any person confirmed by diagnostic test, or suspected based on symptoms, to have COVID-19; or (3) have tested positive for COVID-19 in the last 10 days.

Notably, the Office Guidelines provide that individuals need not be screened for close contacts with COVID-19 if the individuals being screened are fully vaccinated or if they have fully recovered from a lab-confirmed COVID-19 case within the last three months. Such individuals instead should monitor for COVID-19 symptoms for 14 days following an exposure.

Physical Distancing

As discussed in previous LawFlashes (Multiple States, Including the New York Tristate Area, Announce Significant Rollback of COVID-19 Capacity Limit Restrictions and New York to Implement CDC Guidance on Indoor Mask Use and Social Distancing), New York State recently eliminated most capacity restrictions and adopted the Centers for Disease Control and Prevention (CDC) guidance providing that fully vaccinated individuals do not need to wear a face covering or socially distance in most settings.

The updated Office Guidelines incorporate New York’s adoption of the CDC guidance, providing that businesses may allow for fully vaccinated employees to return to offices at full capacity without requiring such employees to wear a face covering or socially distance. Businesses may choose to adopt the CDC guidance for the entire establishment or a separate, designated part of the establishment. Businesses still have the option to require face coverings and six feet of social distancing for employees regardless of vaccination status, if they choose to do so. While New York State does not require that businesses obtain proof of vaccination, the Office Guidelines provide that businesses may obtain proof of full vaccination status via paper or digital form, or the state’s Excelsior Pass.

Businesses are still directed to require unvaccinated employees to wear face coverings and maintain six feet of social distancing. Businesses may also use their discretion in determining how they wish to apply guidelines for vaccinated individuals and unvaccinated individuals, or those whose vaccination status is unknown. Such steps may include posting signage asking unvaccinated individuals to socially distance and continue to wear face coverings; designating separate elevators for vaccinated and unvaccinated individuals; and setting maximum space capacity for unvaccinated individuals to the extent needed to maintain the required social distance. Similarly, in other small spaces (e.g., storage or supply closets), businesses should ensure indoor occupancy does not exceed the capacity required to maintain social distance, if necessary, as set forth by the Office Guidelines, unless it is designed for use by a single occupant or all individuals are fully vaccinated.

In areas where vaccination status is unclear or in unvaccinated sections of an establishment, businesses must ensure that a distance of at least six feet is maintained between all employees, barring a core business activity requiring a shorter distance.

The Office Guidelines also remove several previous recommendations for physical distancing. For example, businesses are no longer encouraged or required to close or adjust common seating areas, and “strict clean desk policies” are no longer recommended. Physical barriers are no longer required, but if used should be put in place in accordance with Occupational Safety and Health Administration (OSHA) guidelines.

Workplace Activity

Importantly, the Office Guidelines no longer encourage allowing employees to work from home, though employers may of course continue to permit employees to do so. The Office Guidelines also provide that formerly required measures to reduce interpersonal contact and congregation are now just recommendations. Such measures could include adjusting hours, reducing an in-office workforce, shifting an office’s design, and staggering tasks.

Phased Reopening

The Office Guidelines no longer encourage businesses to engage in either remote work or phased reopening activities.

Analysis

Given the Office Guidelines, New York employers can permit fully vaccinated individuals to return at full capacity without social distancing and without wearing face coverings while at work. However, the Office Guidelines continue to require multiple reopening measures. For example, businesses must still create and post mandatory site safety plans and designate monitors to ensure compliance with those plans, maintain logs with the time and scope of all cleanings and disinfection, report positive cases and cooperate in contact tracing efforts by local health departments, prohibit shared self-serve meals and beverages among employees, and attest to having reviewed and understood the Office Guidelines before reopening.

Because the Office Guidelines distinguish between vaccinated and unvaccinated employees, employers should consider retaining documentation (or at least an affirmation) of an employee’s vaccination status, while being mindful that such records should be treated as confidential information and maintained in a secure location separate and apart from the employee’s personnel files (similar to how employers were required to treat daily attestations). If businesses choose not to maintain proof of vaccination, they should consider how to comply with the new guidance and clearly communicate in advance with all individuals who will enter their businesses—whether via signage at points of entry, email, or website posting—regarding their approach to vaccinations.

Finally, as the vaccination rate quickly approaches the 70% threshold at which Governor Cuomo stated most COVID-19 requirements will instead become recommendations, employers should closely monitor for forthcoming updates regarding changes to the remaining requirements applicable for their industries.

June 9, 2021 Update:

New York Updates COVID-19 Guidance Including Daily Health Screening Requirements

On June 8, 2021, New York State updated the NY Forward Guidance for several industries, including office-based and food services employers, with changes that many people feel are overdue.

In addition to incorporating updated mask, physical distancing, and capacity rules that have been in place since New York adopted the Centers for Disease Control and Prevention (CDC) guidance for fully vaccinated individuals on May 19, 2021, the most significant modification to the NY Forward Guidance update is the change in screening questions. The guidance no longer requires employers to ask about symptoms, close contact, or COVID-19 infections that occurred in the last 14 days. Instead, the new daily health screening questions properly reflect the most current CDC and New York State Department of Health isolation and quarantine guidelines for COVID-19.

The following three screening questions are required:

  1. Are you currently experiencing, or recently experienced (in the last 48 hours), any new or worsening COVID-19 symptoms?
  2. Have you had close contact (being within six feet for at least 10 minutes over a 24-hour period) or proximate contact (as determined by health authorities) in the past 10 days with any person confirmed by diagnostic test, or suspected based on symptoms, to have COVID-19?
  3. Have you tested positive through a diagnostic test for COVID-19 in the past 10 days?

Prior to June 8, the time period for all three questions was 14 days, which was premised on outdated COVID-19 public health authority guidance. In addition, if an employee had a preexisting condition that mirrored COVID-19 symptoms, such as migraines, they were required to answer the symptom screening question in the affirmative. The updated guidance permits employees to account for preexisting conditions.

Finally, the updated NY Forward Guidance now expressly provides an exemption from answering the close-contact question in the affirmative for employees who are either fully vaccinated or who have recently (in the last three months) fully recovered from COVID-19.

The updated guidance is a reminder to employers that the NY Forward Guidance is still applicable for businesses seeking to operate in person.

May 18, 2021 Update:

Governor Cuomo’s “Rollback” Announcement

This announcement included a number of seemingly positive moves for the state, namely with respect to social distancing and capacity limits. New York’s developments can be found at this link – NY Reopening Reference Guide. Specifically: New York’s developments can be found at this link – NY Reopening Reference Guide.

New York’s Developments

  • On May 10th, the outdoor social gathering limit increased to 500 people, and on May 19th the indoor social gathering limit will increase to 250 people. In New York, any event gatherings in excess of the social gathering limits may only occur if all individuals present proof of full vaccination status or recent negative COVID-19 test result.
  • On May 19th, business capacity limits based on a percentage of capacity will be replaced with capacity limits based on the space available to maintain six feet of social distancing. The announcement provides that the new distance-based maximum capacity “will apply across commercial settings, including retail, food services, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among other settings, [and] houses of worship.” However, industry specific guidance remains in effect. While the state has said industry guidance will be updated, no major revisions have been published to date.
  • On May 19th, capacity at large outdoor venues, like those that host outdoor sports competitions or performing arts events, will only be limited by the space available for parties to maintain a social distance of six feet, provided social distancing requirements, masking protocols, and other public health restrictions are followed. Fully vaccinated individuals who are in assigned, seated sections designated solely for such persons will not need to social distance.
  • On September 14th, Broadway theaters will be permitted to reopen at 100% capacity.

Notably, even with the rollback of restrictions, New York appears to be maintaining specific industry guidance for addressing COVID-19 compliance, although it is expected that the State will be revising it based on the significant number of recent changes.

No doubt, the recent announcements appear to be welcome developments, but it remains to be seen what New York is actually permitting when it comes to capacity restrictions. It appears that New York is shifting from a percentage or numerical-based limitation to a new capacity limitation that is based almost entirely on the more nebulous notion of providing six feet of space for everyone (or at least for everyone that is not vaccinated). If taken literally, the six foot rule would mean that each occupant would need their own floating 12 foot by 12 foot zone in which to operate. Certainly, such a standard would not provide New York businesses with relief, and it would compare negatively with existing New York code that provides for different capacities and loads based upon business and industry designations (see NY Building Codes). It would appear that New York is not intending to create stricter capacity requirements, but again the restrictions seem dependent upon vaccination status. In this regard, New York guidance for businesses presently provides that:

For areas where vaccination status of individuals is unknown and for patrons who do not present proof of full vaccination status, the required social distance of 6 feet still applies until more New Yorkers are fully vaccinated. This change will apply across all commercial settings, except the exempt settings outlined by the CDC.

This easing of capacity restrictions goes hand in hand with the easing of masking restrictions announced by Governor Cuomo on May 17 – (NY Mask Guidance). Indeed, Governor Cuomo stated that New York will follow the CDC guidelines (CDC guidance) on masking for vaccinated persons. What is unclear about those requirements is how businesses will apply them to employees and visitors. It seems likely that this easing of capacity limits, masking requirements, and getting back to normal business in New York may well be dependent upon considerations relating to vaccinations, negative tests, and/or proof of prior infection. Also, there is likely to be an interplay with OSHA’s “General Duty Clause,” which requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. This entire discussion promises to bring some confusion and contention to bear, and at least six New York County Executives are weighing in for the removal of masking rules altogether and return of normalized business capacities.

Finally, employers in New York are reminded that all of this will need to be blended with an evaluation of the NY Hero Act, see our recent Seyfarth NY Hero Update.

May 17, 2021 Update:

New York is Adopting the CDC’s Lifting of Mask Mandates

As of this Monday, 5/17 Governor Cuomo announced that New York will be adopting the Centers for Disease Control and Prevention’s (CDC’s) lifting of mask and social distancing mandates for the fully vaccinated public. This means that among other things, as of Wednesday, 5/19 fully vaccinated people may forgo face masks and social distancing in most places, regardless of being inside or out, or of the crowd size itself.  Face coverings will still be required for all on public transportation and in health care facilities. For those who are immunocompromised or not yet vaccinated masks and social distancing, mandates must still remain in place and followed as circumstances dictate.

While this may offer those who have fully vaccinated some much anticipated good news, it is important to keep in mind that from an employment perspective PrestigePEO still suggests folks headed back into a physical office, and who may be sharing common work areas with the unvaccinated, proceed with caution.  While allowable for vaccinated employees to take off their masks, it may not be prudent while working in close quarters with others who either cannot forgo their masks or perhaps do not feel comfortable in doing so.  It is important to keep in mind too, that exercising the right to forgo a mask while another co-worker cannot within a certain work location it may raise conflict or discrimination concerns for some.  In order to avoid possible employment issues like these, clients are encouraged to speak with their HRBP for guidance prior to creating policy or setting precedent in the office regarding whether or not they should, or want to, allow similar rules at their location.

April 21, 2021 Update:

New York State Enacts Worker Safety Legislation and Considers Other Employee-Friendly Bills

The New York State Legislature is keeping busy with new employment legislation as the local and national economies continue to recover from the COVID-19 pandemic.

On April 21, 2021, both houses of the Legislature announced passage of portions of the NY Hero Act, which requires extensive new workplace health and safety protections in response to the pandemic. The Legislature is also advancing two additional employment-related bills: one would ban “no-rehire” clauses in employment settlement agreements, and the other would prohibit “no-poach” agreements between franchisors and franchisees.

NY Hero Act

Despite pushback from the business community, the NY Hero Act has passed both houses of the Legislature. When signed by the Governor (as is expected), the law will provide the following:

  • Airborne Infectious Disease Workplace Safety Standard. The law directs the Department of Labor to establish minimum requirements for preventing the spread of airborne infectious diseases in the workplace. The standards must differentiate among industries and must address several areas, including (1) employee health screenings, (2) face coverings, (3) personal protective equipment, (4) social distancing, and (5) cleaning and disinfecting protocols. Employers will be required either to adopt the DOL-issued standard that is relevant to their industry and workforce, or to establish their own disease prevention plan that meets or exceeds the requirements of the DOL-issued standard. Employers will also be required to post their plan in the workplace and distribute it to their employees upon hire and/or after reopening following a closure due to an airborne infectious disease.
  • Non-Retaliation. Employers will be barred from retaliating against employees for reporting violations of their standard, for reporting concerns of exposure to such diseases, and for refusing to work where the employee reasonably believes in good faith that the workplace exposes them to an unreasonable risk of exposure.
  • Penalties. The law authorizes the DOL to assess penalties to a non-compliant employer of at least $50 per day for failing to adopt a relevant standard or disease prevention plan, and a fine of $1,000-$10,000 for failing to comply with the plan.
  • Private Right of Action. The law also provides employees with the right to bring a lawsuit seeking injunctive relief against an employer for failing to comply with the above provisions of the law. Courts may enjoin the employer’s conduct and award the plaintiff attorneys’ fees and costs and liquidated damages up to $20,000 unless the employer demonstrates good faith attempts to comply with the standard.
  • Creation of Workplace Safety Committees. The law requires employers to permit employees to form a joint labor-management workplace safety committee with employee and employer designees. The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

The effective date of the mandate for the DOL to issue the industry-specific standards is 30 days from the Governor’s signature. While the statute is not crystal clear on this point, it appears that employers will not be required to establish their own disease prevention plan until the DOL issues its standards. Other aspects of the law have more immediate implications: the non-retaliation provision takes effect 30 days after the Governor’s signature, and the workplace safety committee provisions are effective 180 days after signature.

Prohibition of No-Rehire Clauses

Bill S766, which is currently pending before the full State Senate, would prohibit employers from including clauses in settlement agreements that prevent employees from applying for, accepting, or engaging in future employment with the employer, or any entity or entities related to such employer. The bill declares that an agreement containing such a provision is unenforceable—except that the employer would still be bound by its obligations under the agreement to include full compensation/severance pay for the employee.

As proposed, this bill would take effect 60 days following the Governor’s signature. In anticipation of passage, employers should carefully review their settlement templates for New York employees, as no-rehire clauses are common provisions in separation and settlement agreements involving terminated employees.

No-Poach Ban

Bill S562, known as the End Employer Collusion Act, prohibits agreements between franchisors and franchisees that restrict such entities from hiring the current or former employees of their franchisor or other franchisees. Any such agreements would be deemed void as a matter of law. Additionally, the bill provides a private right of action for any employee who was denied employment pursuant to such a no-poach agreement and authorizes compensatory damages, punitive damages, and attorneys’ fees.

As proposed, this bill would take effect immediately upon the Governor’s signature.

Next Steps for Employers

In the short-term, employers should begin working with counsel to develop compliant policies and procedures under the NY Hero Act, which is expected to be signed shortly. Employers should also consider how the prohibitions on no-rehire clauses and no-poach agreement might impact their operations.

April 21, 2021 Update:

The New York State Department of Health updated its COVID-19 Travel Advisory (the “Advisory”) for domestic and international travel on April 10, 2021. The state has now altered its recommendations based on vaccination status and the advisory relaxes restrictions on international travel as well.

The definitions of “domestic travel,” “fully vaccinated,” and “recently recovered” in relation to the travel guidance are as follows:

  • “Domestic travel” is defined as travel lasting for twenty-four (24) hours or longer to states or U.S. territories other than contiguous states (i.e., New Jersey, Pennsylvania, Connecticut, Massachusetts, and Vermont).
  • An individual is considered “fully vaccinated” if two (2) or more weeks have passed after the individual received the second dose of either the Pfizer or Moderna vaccine or the single dose of the Janssen/Johnson & Johnson vaccine.
  • “Recently recovered” is defined as being: (1) recovered from laboratory-confirmed COVID-19 as to meet the criteria for discontinuation of isolation; (2) within three (3) months since the initial onset of COVID-19 symptoms or, if asymptomatic during the illness, the date of a positive COVID-19 test; and (3) asymptomatic.

All international and domestic travelers (as defined by the Advisory) are still required to complete the New York State Travel Form. Please note: New York State residents who voluntarily engage in non-essential travel are not eligible for benefits under New York’s COVID-19 Sick Leave Law.

Domestic Travel

The Advisory does not impose any testing or quarantine requirements for domestic travel, except for unvaccinated healthcare workers as described below. Further, New York State recommends that unvaccinated domestic travelers, who have not recently recovered from COVID-19, get tested between three (3) and five (5) days after travel and these individuals consider self-quarantining for seven (7) days if tested as directed above or ten (10) days if not tested. Regardless of the test result, unvaccinated domestic travelers should avoid contact with people at higher risk for severe disease for fourteen (14) days from the date of arrival in New York.

International Travel

Except for unvaccinated healthcare workers, the Advisory also removes any testing or quarantine requirements for international travelers. However, recommendations which are consistent with those of the Centers for Disease Control and Prevention (“CDC”) state the following:

  • International travelers who are fully vaccinated should get a COVID-19 test between three (3) and five (5) days after arriving in New York.
  • All international travel should be delayed until the traveler is fully vaccinated.
  • If an unvaccinated individual does travel abroad, the individual should get a COVID-19 test between three (3) and five (5) days after arriving in New York. Further, an unvaccinated international traveler should consider self-quarantining for seven (7) days if tested as directed above or ten (10) days if not tested. Regardless of the test result, unvaccinated international travelers should avoid contact with people at higher risk for severe disease for fourteen (14) days from the date of arrival in New York.

The above guidance does not apply to international travelers arriving from Canada who cross at a land border. These travelers must comply with the agreement between the United States and Canada regarding land travel.

Travel Restrictions for Unvaccinated Healthcare Workers

The Advisory imposes the following requirements for unvaccinated healthcare workers arriving in New York State who have not recently recovered from COVID-19:

  • Healthcare workers who work in nursing homes, enhanced assisted living residences, or assisted living programs must stay home from work for fourteen (14) days upon arrival in New York from either domestic or international travel.
  • Healthcare workers who work in all other healthcare settings cannot return to work for ten (10) days after international travel. However, this time period can be shortened to seven (7) days if the healthcare worker gets tested between three (3) and five (5) days after travel and receives a negative test result. Regardless of the test result, these workers must avoid contact with people at higher risk for severe disease for fourteen (14) days from the date of arrival in New York. No such requirement exists for domestic travel.

All international and domestic travelers (as defined by the Advisory) are still required to complete the New York State Travel Form. Please note: New York State residents who voluntarily engage in non-essential travel are not eligible for benefits under New York’s COVID-19 Sick Leave Law.

April 1, 2021 Update:

As of April 1st, domestic travelers are no longer required to quarantine after entering New York from another U.S. State or U.S. Territory. While no longer required, the NYS Department of Health still recommends quarantine after domestic travel as an added precaution. Mandatory quarantine remains in effect for international travelers. All travelers must continue to fill out the Traveler Health Form. Individuals should continue strict adherence to all safety guidelines to stop the spread—wearing masks, socially distancing and avoiding gatherings.

March 30, 2021 Update:

New York Department of Labor Issues Guidance on Paid Leave for COVID-19 Vaccinations 

On March 12, 2021, Governor Cuomo signed a new law that grants paid leave to employees to get vaccinated for COVID-19. Under the statute, employees may take up to four hours of paid time off per vaccine injection however, the new law is silent on several key issues, which has left employers with numerous unanswered questions. Following the enactment of the law, the New York Department of Labor (NYDOL) issued guidance in the form of Frequently Asked Questions (FAQs) addressing some of these issues. Specifically, NYDOL provides the following information regarding documentation, notice, retroactivity, amount of leave, employer coverage, reason for leave, rate of pay and collective bargaining agreements:

  • Documentation: The law does not prohibit employers from requesting proof of vaccination. However, employers are encouraged to consider applicable confidentiality requirements prior to requesting such documentation.
  • Notice: The law does not prevent an employer from requiring an employee to provide notice prior to taking leave to get vaccinated.
  • Retroactivity: The law does not create a retroactive entitlement to leave. This means that any employees who were already vaccinated as of March 12, 2021 are not entitled to additional paid leave under this law.
  • Amount of Leave: The maximum number of hours to which an employee is entitled under this law depends on the number of required COVID-19 vaccine injections. Employees may take of four hours of leave per vaccine injection. This means, for example, that if a vaccine requires two injections, the employee is entitled to two periods of paid leave of up to four hours each.
  • Employer Coverage: Both public and private employers are covered.
  • Reason for Leave: An employee may only take leave under this law for his or her own vaccine injection, not for vaccination of a relative.
  • Rate of Pay: The law requires employees to be paid at their regular rate of pay.
  • Collective Bargaining Agreements: The rights afforded under this law may be waived in a collective bargaining agreement that specifically references Labor Law §196-c.

While the FAQs provide some clarity on the leave entitlement, several questions still remain unanswered. For example, NYDOL does not provide a definition as to what constitutes a “sufficient period of time” to receive a COVID-19 vaccine. Further, NYDOL does not address whether an employee may take leave under this law due to symptoms or side effects associated with a vaccine injection.

March 15, 2021 Update:

COVID-19 Vaccine Paid Leave

On March 1, 2021, the New York State Senate followed in the footsteps of the State Assembly by unanimously voting to grant both private and public employees up to four hours of paid leave to receive the COVID-19 vaccine. This measure was supported by Governor Cuomo who signed the bill into law on March 12, 2021. Employers and employees alike should note that this law is effective immediately and will remain so until December 31, 2022.

Click here for more information.

New York’s Travel Advisory 2.0: Frequently Asked Questions

New York’s travel advisory has been substantially altered during the past two weeks. On October 31, Gov. Andrew Cuomo issued Executive Order 205.2, which revised the New York State Travel Advisory for domestic travel. On November 3, the New York State Department of Health issued an updated guidance document (the November 3 Guidance). The changes made by Executive Order 205.2 and the November 3 Guidance have generated confusion. Below, we discuss some frequently asked questions we have received about these updates.

Which states and countries does the travel advisory apply to?

The travel advisory applies to all states except those bordering New York: Pennsylvania, New Jersey, Connecticut, Massachusetts, and Vermont. It also applies to travelers coming to New York from any country with a CDC Level 2 or Level 3 designation. The full list of Level 2 and Level 3 countries may be found here.

What does the travel advisory require?

Before, people coming to New York from a designated state or country would have to quarantine for 14 days without the ability to “test out” of quarantine. Executive Order 202.52 and the November 3 Guidance changed this rule. Now, travelers coming to New York must receive a COVID-19 test within 72 hours prior to arriving in New York. Further, travelers coming to New York must quarantine for 14 days and may test out of the 14-day quarantine if they do the following:

  1. Quarantine for at least three days;
  2. On the fourth day, seek a COVID-19 test; and
  3. Receive a second negative test result.

A traveler may exit quarantine upon receiving the second negative test result.

Does the 24-hour exemption still apply?

Yes. Travelers coming to New York after being in a non-continuous state or a designated country for less than 24 hours do not have to quarantine. Such travelers must still fill out the traveler health form upon return and receive testing for COVID-19 on their fourth day in New York.

How does the November 3 Guidance impact essential workers?

The short-term, medium-term, and long-term exceptions for essential workers continue. The short-term and medium-term exceptions remain the same from the prior guidance.

There are changes to the long-term exception. For essential workers traveling to New York for a period of greater than 36 hours—including New Yorkers who traveled out of state—essential workers must be tested for COVID-19 on the fourth day after arriving in New York. During that interim period, such employees may continue to work.

There are exceptions. Nursing home and adult care facility staff must receive a negative COVID-19 test before returning to work. Further, teachers, school employees, and child-care workers cannot use the long-term essential worker exemption. If such employees want to “test out” of their 14-day quarantine, they must follow the testing protocol described above.

May international travelers qualify as essential workers?

Yes. The November 3 Guidance is explicit: international travelers may qualify as essential workers.

Who is considered an essential worker?

The November 3 Guidance defines three types of essential workers:

1. Any individual employed by an entity included on the Empire State Development (ESD) Essential Business list;

2. Any individual who meets the COVID-19 testing criteria, pursuant to their status as either an individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting, or an individual who is employed as an essential employee who directly interacts with the public while working, pursuant to DOH Protocol for COVID-19 Testing, issued May 31, 2020; or

3. Any other worker deemed such by the Commissioner of Health.

What are the consequences for non-compliance?

If an individual does not follow the proper testing protocols described above to opt-out of the quarantine, the individual must quarantine for 14 days.

If an individual violates a mandatory quarantine order from the Department of Health and/or the applicable local health department, the individual may face a civil penalty of up to $10,000 or imprisonment of up to 15 days.

Who must fill out the traveler health form?

All individuals coming to New York from any non-contiguous state must fill out the traveler health form, which may be found at https://forms.ny.gov/s3/Welcome-to-New-York-State-Traveler-Health-Form. This includes New York residents who are returning to the state after being in a designated state for less than 24 hours.

Are there any other exemptions to the travel advisory?

Yes. The Department of Health may grant specific exemptions “based upon extraordinary circumstances, which do not warrant quarantine” but may be in the interest of public health.

New Jersey

March 23, 2021 Update:

New Jersey Governor Murphy Issues Three New Executive Orders

Governor Murphy has issued three new executive orders that will gradually ease the capacity restrictions on indoor and outdoor gatherings (Executive Order 238 and Executive Order 239) and summer youth camps (Executive Order 237). The indoor and outdoor gathering limitations for New Jersey are summarized at NJ.gov here – NJ gatherings guidance. In addition, on May 17, Governor Murphy announced that remote schooling will end after the present school year, all travel advisories have been lifted, and he expects to end the state of emergency by June 14. As of May 17, masking requirements have also been removed for outdoor public spaces and gatherings of fewer than 50 individuals in indoor private spaces, regardless of individuals’ ability to maintain six feet of distance from other individuals or groups and regardless of their vaccination status; but indoor masking requirements will remain in place for all indoor public locations (businesses, events, etc.) for a short while longer (Executive Order 241).

With these new Orders, New Jersey will join New York and Connecticut in dropping many of the remaining indoor and outdoor gathering restrictions by May 19, including completely removing the outdoor gathering limit, increasing the indoor gathering limit for general social gatherings, removing all percentage-based capacity limits for indoor and outdoor businesses and houses of worship, and increasing the indoor large venue capacity – though some mask and social distancing regulations will remain. Featured in New Jersey’s diminished restrictions are six foot distancing aspirations similar to those put forward by New York. In certain sections of the Executive Orders, New Jersey provides a little more detail about its “six foot rule.” In this regard, that rule (at least for dining) is said to require that the operator “ensure that tables in indoor areas where individuals or groups are seated are six feet apart in all directions from any other table or seat. . . . Where six feet of distance is not possible, establishments must erect barriers between tables or at the bar,” subject to New Jersey Department of Health (“NJDOH”) Standards.

Outdoor Gatherings: Executive Order 238 and Executive Order 239

As of May 7, the limit on general outdoor gatherings was increased to 500 people, with a litany of nuances depending on the type of event. Effective May 19, all of the outdoor gathering numerical capacity limits in New Jersey will be rescinded, and venues must instead limit occupancy to a number that ensures all individuals or groups can remain six feet apart. Executive Order 239 (as revised by Executive Order 241) further specifies that all attendees at outdoor gatherings that are not religious services or political activities, such as protests, must be six feet apart from other attendees at all times, with some exceptions. On a somewhat confusing, if not humorous, note, the guidance includes a dance floor reopening limitation for outdoor celebrations and private catered events that requires social distancing, except for groups of people that are from the same household (or the like).

Executive Order 238 also indicates that requirements from prior orders Executive Order 161 (Paragraph 1) and Executive Order 152 (Paragraph 2) continue to apply, including, among other things, additional social distancing requirements, depending on the size and type of outdoor gathering.

Indoor Gatherings: Executive Order 238 and Executive Order 239

Executive Orders 238 and 239 modify the capacity limits for indoor gatherings as follows effective May 19:

  • General indoor gatherings  50 people.
  • Indoor gatherings that are political activities, wedding ceremonies, wedding receptions, funerals, memorial services, or Alcoholics Anonymous meetings, Narcotics Anonymous meetings or similar meetings of an additional support group  250 people, excluding gathering venue staff.
  • Indoor gatherings that are religious services or celebrations (including weddings, funerals or memorial services that involve religious services)  No set capacity limit, but must limit capacity to a number that ensures all individuals can remain six feet apart.
  • Indoor catered events → 250 people, excluding the venue’s staff, and also with the same dance floor limitation referenced above plus a face covering requirement.
  • Indoor commercial and other gatherings hosted in a public space (e.g., trade expositions, conferences and events hosted by senior centers)  250 people, excluding venue staff.
  • Indoor legislative and judicial proceedings  No capacity limits.
  • Indoor in-person service at food or beverage establishments  No percentage-based capacity limits, but establishment must limit capacity to a number that ensures all patrons can remain six feet apart from all other patrons at all times, except for those patrons with whom they are sharing a table. Where six feet of distance is not possible, establishments must erect barriers between tables or at the bar pursuant to the NJDOH Health and Safety Standards for Indoor Dining.

Executive Order 238 also lifted the prohibitions on indoor bar seating and self-service food, as of May 7. Food and beverage establishments may now:

– Seat patrons at indoor bar areas, but the requirements from Executive Order 183 (Paragraph 1) for in-person service at indoor areas in food or beverage establishments continue to apply. In-person service to patrons standing in bar areas continues to be prohibited.

– Offer self-service food, such as buffets and salad bars, subject to the NJDOH’s Health and Safety Standards for Indoor Dining.

  • Indoor premises of retail establishments, personal care services, health clubs, recreational and entertainment businesses (including amusement and water parks), and casinos  No percentage-based capacity limits, but establishment must limit occupancy to a number that ensures all patrons or groups of patrons entering the facility together can remain six feet apart.
  • Indoor entertainment centers where performances are viewed or given (including movie theaters, performing arts centers and other concert venues)  250 people, excluding the entertainment center’s employees. The other requirements outlined in Paragraph 2 of Executive Order 183 continue to apply.
  • Indoor athletic practices and competitions  250 people indoor gathering limit, excluding athletes, coaches, referees, trainers, and other individuals who are necessary for the practice or competition.
  • Large indoor sports and entertainment venues (including concert venues and stadiums) with fixed seating capacity of 1,000 or greater  30% of the stated maximum capacity of any room where such event is held, with mask and social distancing requirements.

Executive Order 239 (as revised by Executive Order 241) further specifies that all indoor public gatherings must adhere to the following rules: (1) all attendees at the gathering must wear face coverings, with some exceptions; and (2) all attendees must be six feet apart from other attendees at all times, with some exceptions. Executive Order 238 also indicates that requirements from prior orders Executive Order 183 (Paragraphs 5 and 6) and Executive Order 152 (Paragraph 1) continue to apply for all indoor gatherings, including, among other things, additional social distancing and face covering requirements, depending on the size and type of indoor gathering.

In sum, on May 19, what remains for New Jersey businesses are restrictions that are largely geared toward a six foot rule and indoor public space masking requirements. As with New York, it is expected that New Jersey will be further delineating reopening rules through its own evaluation of vaccine, antibody, and/or testing passports or requirements.

March 23, 2021 Update:

New Jersey issues guidance confirming employers can mandate COVID-19 vaccines

New Jersey recently confirmed that employers can mandate their employees be vaccinated for COVID-19. This move aligns New Jersey with federal guidance previously issued by the EEOC.

Consistent with federal guidance from the EEOC, the New Jersey guidance provides that employers may require employees to be vaccinated to be present on the worksite, however, employers must provide reasonable accommodations for employees who: (i) have a disability, (ii) have been advised not to get the vaccine while pregnant or breastfeeding, or (iii) who will not get the vaccine due to sincerely held religious beliefs. Note, however, that if no reasonable accommodation can be provided, an employer can enforce its policy of excluding unvaccinated employees from the workplace.

Importantly, the guidance also confirms that employers may request medical documentation to confirm a disability or medical condition. Employers should be sure to follow all state and federal requirements in requesting such information and must treat the information as confidential.

While this guidance paves the way for New Jersey employers to mandate COVID-19 vaccines for their workforce, there are several considerations before implementing such a policy.

March 8, 2021 Update:

New Jersey Travel Restrictions

New Jersey strongly discourages all non-essential interstate travel at this time. At this time, individuals who have been vaccinated against COVID-19 should continue to follow the State’s travel advisory.

Travelers and residents returning from any U.S. state or territory beyond the immediate region (New York, Connecticut, Pennsylvania, and Delaware) should self-quarantine at their home, hotel, or other temporary lodging following recommendations from the CDC:

  • If travel is unavoidable, travelers should consider getting tested with a viral test (not an antibody test) 1-3 days before the trip and again 3-5 days after the trip.
  • If travelers test positive, they should self-isolate for at least 10 days and should postpone travel during that time.
  • If travelers test negative, they should quarantine for a full 7 days after travel.
  • If testing is not available (or if the results are delayed), travelers should quarantine for 10 days after travel.

The advisory is no longer specific to certain states. Because of the high number of case counts across all states, there is an increased risk of spread of COVID-19 upon return from any travel.

The self-quarantine is voluntary, but compliance is expected. Travelers arriving from areas with increasing COVID-19 cases may wish to postpone their travel to the region if they are unwilling or unable to follow the quarantine advisory.

Travelers and those residents who are returning from states and territories beyond the immediate region should quarantine at their home, or a hotel or other temporary lodging. Individuals should leave the place of quarantine only to seek medical care/treatment or to obtain food and other essential items.

Please note that this advisory does not apply to individuals:

  • Who are returning to New Jersey after traveling outside of the state for less than 24 hours or those traveling to New Jersey for less than 24 hours – Even where travel is less than 24 hours, however, individuals are still discouraged from engaging in non-essential travel to other states to the extent possible.
  • Who are in transit through the state to another destination, provided that the time spent in the state is only the amount of time necessary to complete the transit, make use of travel services, such as a highway rest stop, or make necessary travel connections.

People who have tested positive for COVID-19 in the past 3 months and recovered do not need to quarantine or get tested again during that three-month period as long as they do not develop new symptoms. If new symptoms develop after travel, people should follow instructions for what to do if you’re sick.

April 4, 2020 Update:

Paid Sick Leave & Family Leave Insurance Benefits

  • Amended to permit employers to provide sick leave when an employee is unable to work because:
    • There is a state of emergency or threat of health to others by the presence of an employee in the community (paid sick leave).
    • The same circumstance as above but determination relates to an employee’s family member in need of care by the employee (paid sick leave & FLI).
    • The employee is caring for a family member who is in isolation or quarantine because of “suspected exposure to a communicable disease” (paid sick leave & FLI).
    • The employee is isolated or quarantined (paid sick leave).
    • The employee’s workplace or child’s daycare or school is closed because of a state of emergency (paid sick leave).
April 4, 2020 Update:

Family Leave Act

  • FMLA is amended to expand the definition of “serious health condition” during a state of emergency.
  • This will apply to employers with 30+ employees.
  • It prohibits an employer from denying family leave to any employee during an epidemic of a communicable disease or a known suspected exposure to such a disease.
    • This will apply to care for a family member who needs to be quarantined; or because the family member’s place of care is closed due to a state of emergency.
April 4, 2020 Update:

Temporary Disability Insurance

  • The law has been modified to waive the seven-day waiting period for benefits during a state of emergency if the disability is for illness caused by an epidemic of a communicable disease, a known or suspected exposure to the disease, or in an effort to prevent the spread of the disease.
  • Employers with a private disability plan instead of a New Jersey state plan are required to provide these benefits as well.

Connecticut

March, 4, 2021 Update:

Governor Lamont Lifts Restrictions

Connecticut has signaled what appears to be the simplest return to normal in the tri-state area and perhaps has demonstrated the greatest degree of common sense in the area. In this regard, on May 1, 2021, Connecticut removed all outdoor restrictions and moved back the curfew for bars and restaurants. Further, the state has announced that all other restrictions are being lifted on May 19. Connecticut’s summary industry guidance can be found here and includes links to all applicable industry sector guidance. The published regulations at this point continue to include masking and distancing requirements, but Connecticut Governor Lamont has indicated he will conform the state’s requirements so as to follow the CDC’s recent mask guidance for fully vaccinated people. The Governor went on to clarify that in doing so the state would be relying upon an honor system to confirm vaccinations. It remains to be seen how this will play out in Connecticut and whether vaccine, antibody, and/or testing passports or requirements will be considered or required.