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Is the Government Travel Advisory an Enforceable Order?

As most of us know, the Governors of New Jersey, New York, and Connecticut have issued a “travel advisory” indicating that those who travel from certain states must quarantine for a period of 14-days after the last contact with those states. Is this “advisory” an enforceable order? Well, this topic is becoming one of the most complex of issues facing employers today during this pandemic.

The advisory is now effective and applies to all states that have a positive test rate higher than 10 per 100,000 residents or a state with a 10% or higher positivity rate over a seven-day rolling average. But, unlike the governors of New York and Connecticut, who issued executive orders announcing the restrictions, Governor Murphy of New Jersey has not. New Jersey issued a travel advisory instead. Hence, the question that forms the title of this article – is this travel advisory a state order that must be complied with in all due respects or is it a request from the state for persons to voluntarily engage in certain conduct?

The states that are currently on New Jersey’s travel advisory as of July 28, 2020 include the following:

  1. Alabama (added 6/24/20)
  2. Alaska (added 7/21/20)
  3. Arkansas (added 6/24/20)
  4. Arizona (added 6/24/20)
  5. California (added 6/30/20)
  6. Delaware (re-added 7/21/20)
  7. District of Columbia (added 7/28/20)
  8. Florida (added 6/24/20)
  9. Georgia (added 6/30/20)
  10. Iowa (added 6/30/20)
  11. Idaho (added 6/30/20)
  12. Illinois (added 7/28/20)
  13. Indiana (added 7/21/20)
  14. Kansas (added 7/7/20)
  15. Kentucky (added 7/28/20)
  16. Louisiana (added 6/30/20)
  17. Maryland (added 7/21/20)
  18. Minnesota (re-added 7/28/20)
  19. Mississippi (added 6/30/20)
  20. Missouri (added 7/21/20)
  21. Montana (added 7/21/20)
  22. Nebraska (added 7/21/20)
  23. Nevada (added 6/30/20)
  24. New Mexico (added 7/14/20)
  25. North Carolina (added 6/24/20)
  26. North Dakota (added 7/21/20)
  27. Ohio (added 7/14/20)
  28. Oklahoma (added 7/7/20)
  29. Puerto Rico (added 7/28/20)
  30. South Carolina (added 6/24/20)
  31. Tennessee (added 6/30/20)
  32. Texas (added 6/24/20)
  33. Utah (added 6/24/20)
  34. Virginia (added 7/21/20)
  35. Washington (added 7/21/20)
  36. Wisconsin (added 7/14/20)

The advisory has become a nightmare for many employers to deal with. I am being barraged with questions about whether employers with employees travelling to the listed states must honor the two week self-quarantine directive. In addition, must the employer pay the employer for such quarantine time?  Many employers are irked about that latter fact: that they might actually need to pay employees who are willfully traveling to hot spots where the COVID virus is spreading like a wildfire. So, what can an employer do in this situation?

The first thing that must be determined is whether the advisory has the force of a legal order that must be followed.  On first glance, the answer to this question would seemingly be no. An advisory is just that: a seeming recommendation to self-quarantine for two weeks after travelling to a designated hot spot for the virus. Moreover, unlike New York and Connecticut, New Jersey has not included any prescribed penalties for the failure to follow the advisory. All this seems to suggest that the advisory does not have the force of law, and employers could compel their employees to come to work and not follow the advisory, which by the way, has a long list of exclusions for certain essential employees and folks who are travelling to New Jersey to work, which also seems to support a conclusion that compliance with the advisory is strictly voluntary.

New Jersey has a COVID-19 website that most thoroughly outlines what the state expects concerning its travel advisory. In what can only be described as classic Orwellian doublespeak, here is what that website says about this compliance issue: “The self-quarantine is voluntary, but compliance is expected.

As a lawyer reading such language, it makes me think that, while couching compliance as voluntary, the advisory really is a legal directive from the state making compliance mandatory – and when push ever comes to shove, I suspect a judge would feel that same way too if any adverse action is taken against an employee who insists upon following the self-quarantine directive.  So what have I been telling employers in this instance: if you can, try and claim that you have an essential employee. A list of those persons can also be found on the NJ COVID website. Otherwise, you likely need to let the employee self-quarantine for the required two weeks.

After concluding that the travel advisory seems to be anything but voluntary, the next question to be addressed relates to whether an employer must pay employees who self-quarantine in light of the advisory. If it is indeed a quarantine order, an employee would be allowed to use either New Jersey Paid Sick Time or might be eligible for paid emergency sick time under the Families First Coronavirus Response Act (“FFCRA”). That seems to flow from my analysis so far.

But, I recently had a conversation with a federal Department of Labor Investigator. That department is responsible for investigating claimed violations of the FFCRA.  Significantly, I was told by this investigator that right now her colleagues in New Jersey believe that the travel advisory is a voluntary requirement: “it says advisory right” or so I was told by the investigator. Thus, it was her view that paid federal paid sick time was not available because a state quarantine “order” was missing, and without such an order, there is no paid sick time eligibility. Confusing, right?  I was further told that the investigators here in New Jersey are awaiting for actual guidance from Washington on this topic. Let’s hope that comes soon.

As can be seen from above, there are a lot of moving parts here when an employer is trying to decide how New Jersey’s travel advisory affects its workforce. One option for the employer is to avoid having to deal with the issue entirely by prohibiting employees from travelling to any of the listed states. Employers have the ability to take such an action. They can ban business trips to those states, and likewise place a moratorium on approving any employee vacations for the next few months while seeing how the pandemic develops further. That way you as an employer know that your employees are not visiting places where a quarantine is required.

Hence, it is confusing to try to figure out what an employer must do in light of New Jersey’s “voluntary” travel advisory that from all indications is really a state “order” requiring full compliance in all respects.  Consequently, employers should proceed cautiously, and guide their actions accordingly, in how they treat employees coming back from restricted states under the advisory.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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