In the midst of a second and serious wave of the COVID-19 pandemic, New York has been busy updating guidance, restrictions and other laws. While seemingly unrelated, each is a direct result of what we are experiencing in this new normal environment.
New York has had a detailed and aggressive travel advisory in place for some time. The advisory commenced via Executive Order 205 signed by Governor Andrew Cuomo on June 24, 2020. Since then, there have been various updates to this original order, with restrictions for locations now including nearly every state in the United States, in addition to Level 2 and Level 3 countries. States contiguous to New York are not included on the advisory (i.e., travelers from these states are not subject to guidance), even if the state meets the criteria detailed below. Contiguous states include Pennsylvania, New Jersey, Connecticut, Massachusetts and Vermont.
Under the order, all travelers entering New York from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10 percent test positivity rate, over a seven-day rolling average, will be required to quarantine for a period of 14 days consistent with Department of Health regulations. Alternatively, under recent interim guidance from November 3, 2020, New York now offers a "test-out" option for individuals who wish to exit quarantine early. In order to use this alternative, individuals who have traveled out of New York for more than 24 hours must obtain testing within 72 hours prior to arrival in New York―and upon arrival in New York, individuals must quarantine according to Department of Health guidance for a minimum of three days (measured from the time of arrival). Then, on day four, the individual may seek a diagnostic test to exit quarantine. Assuming both tests are negative, individuals subject to this order may then exit their quarantine.
However, there are some exceptions to this rule. For instance, this quarantine requirement does not apply to those who travel outside of New York for less than 24 hours. Such travelers are still required to comply with other requirements, such as properly filling out and submitting the traveler form and obtaining a diagnostic test on day four.
Furthermore, first responders and essential employees are exempt from the above-mentioned requirements, but must follow the following protocols:
- Short Term (for first responders and essential workers traveling to New York for less than 12 hours): These individuals must instead: 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; and, to the extent possible, avoid extended periods in public, contact with strangers and large congregate settings.
- Medium Term (for first responders and essential workers traveling to New York for less than 36 hours, requiring overnight stay): These individuals must instead: monitor temperature and signs of symptoms, wear a face covering when in public, maintain social distance, and clean and disinfect workspaces; and, to the extent possible, avoid extended periods in public, contact with strangers and large congregate settings.
- Long Term (for first responders and essential workers traveling to New York for more than 36 hours, requiring them to stay several days): These individuals must instead seek diagnostic testing for COVID-19 on day four after arriving.
While all regions in New York are currently in Phase IV of the New York Forward reopening plan, with the rising case levels, businesses should be vigilant about new and additional restrictions. Certain industries, such as restaurants and bars, have curfews. Additionally, businesses should consistently review available guidance to determine if their location appears in one of the cluster zones, which may come with additional requirements and restrictions.
Generally, businesses or entities in industries open in Phase IV must be operating in compliance with the guidance promulgated by the Department of Health. General restrictions include the wearing of face coverings by employees, customers and visitors, social distancing, and cleaning and disinfection protocols required by the Department of Health. Additional measures will vary depending on the industry.
Additionally, effective as of 10 p.m. on November 13, 2020, nonessential gatherings statewide at private residences are capped at 10 or fewer individuals for any lawful purpose or reason. Other existing nonessential gathering limits are otherwise still in effect. With the holidays quickly approaching, the state has broadcast multiple reminders and encouraged virtual gatherings instead of in-person gatherings this year.
Furthermore, bars, restaurants and gyms or fitness centers, as well as any State Liquor Authority-licensed establishment, will be required to close from 10 p.m. to 5 a.m. daily. Restaurants will still be allowed to provide curbside, food-only pickup or delivery after 10 p.m., but will not be permitted to serve alcohol to go. The order for these requirements currently remains in effect through December 12, 2020, but it is reasonable to assume the restrictions will be further extended if the number of COVID-19 cases continues to rise.
New WARN Requirements
On November 11, 2020, Governor Cuomo signed into law amendments to the New York State WARN Act, effective immediately. Under the existing law, covered businesses are required to provide 90 days' advance written notice of plant closures and mass layoffs to affected employees, the state Commissioner of Labor, and the Local Workforce Investment Board. While the provisions of the law remain the same, the amendment adds additional entities that now must receive notification as well, including:
- The chief elected official of the unit or units of local government and the school district or districts in which the mass layoff, relocation or employment loss will occur; and,
- Each locality that provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment subject to the mass layoff, relocation or employment loss, as applicable.
We anticipate that the Department of Labor will update its website to address the new requirements soon.
What This Means for Employers
As the COVID-19 pandemic continues to unfold and cases rise, businesses should continue to remain vigilant and informed of various federal, state and local updates, which still frequently change. Employers should consult counsel to ensure they are compliant with the necessary safety protocols and have the appropriate language appear in recent policies.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Fatima Guillen-Walsh, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team, or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.