By: Michelle De Oliveira, Esq.

On July 24, 2020, Governor Baker issued a COVID-19 Travel Order[1] to safeguard residents from exposure to the Coronavirus due to interstate travel. The Travel Order went into effect on August 1, 2020, requiring visitors and returning residents entering Massachusetts to complete and submit a Travel Form and self-quarantine for 14 days unless the individual is exempt from the mandated quarantine.

In this article, our discussion is twofold: First, what are the Travel Order’s essential components? Second, what are the practical implications of the Travel Order for employers?

First: What are the Travel Order’s essential components?

The essential components of the Travel Order are the following:

Who must comply with the Travel Order?

Massachusetts residents or individuals who are visiting Massachusetts must comply with the Travel Order if they are: (a) over 18 years of age, or (b) an unaccompanied minor.

How do you access and submit the Travel Form?

The Travel Form may be accessed and submitted using the following link: (https://www.mass.gov/forms/massachusetts-travel-form). Anyone who enters Massachusetts, after August 1, 2020, is required to complete and submit the Travel Form.

Who is exempt from the 14-day mandated quarantine?

Individuals who fall into one of the exemptions below are not subject to the mandated 14-day quarantine. The exemptions are as follows:

  • Lower-risk state: those who travel to a lower-risk state in the United States, including (as of August 19, 2020): Connecticut, New Hampshire, Vermont, Maine, New York, and New Jersey.[2]
  • 72-Hour testing rule: an individual who can produce, upon request, proof of a negative COVID-19 test result from a test administered on a sample taken no longer than 72 hours before arrival in Massachusetts. An individual may also get tested—at the individual’s own expense—after arrival in Massachusetts, but the individual must quarantine until getting a negative COVID-19 test result.
  • Transitory travel: an individual who passes through Massachusetts, by for example, driving through the state or connecting to an airplane or other mode of transportation in the state.
  • Commuting for work or school: individuals who commute, at least weekly, to a fixed location for school or work so long as the employee or student does not travel to any place that is not their home state for personal or leisure reasons.
  • Travel to seek or receive medical treatment: individuals who commute, at least weekly, to a fixed location for school or work so long as the employee or student does not travel to any place that is not their home state for personal or leisure reasons.
  • Military personnel: individuals who are directed or ordered to travel to Massachusetts by a Federal or State military authority.
  • Workers providing critical infrastructure services: individuals who enter Massachusetts to perform critical infrastructure functions are exempt while they are working.[3] Examples of critical infrastructure functions include without limitation: healthcare or public health workers; law enforcement, public safety and first responders; food and agriculture; energy; water and wastewater; transportation and logistics.

Quarantine Requirements

The Travel Order includes specific requirements that apply during a mandated quarantine. For example: not leaving the living quarters, unless necessary to receive urgent medical care; access to a separate bathroom facility for the individual or family group; having a sufficient supply of face coverings or masks; using recommended personal hygiene protocols (e.g., washing hands with soap, using hand sanitizers, access to cleaning supplies, etc.); having food delivered to the living quarters; and having the ability to quarantine from others in the household in a room with a door. Moreover, an individual must contact a healthcare provider immediately upon experiencing a symptom related to COVID-19 (e.g., fever; cough; difficulty breathing; shortness of breath; chills; muscle or body aches; runny nose or nasal congestion; new loss of taste or smell; headache; nausea; vomiting or diarrhea).

Penalty

Failure to adhere to the Travel Order may give rise to a $500 fine per day.

Employers Should Discourage Out of State Travel

The Travel Order states that employers are “strongly discouraged” from allowing or requiring business-related travel to states that are not on the list of low-risk states. To the extent employers allow employees to travel to states that are not on the low-risk list, employers “should take measures to ensure employees comply with the Travel Order.” In other words, employers should be proactive and take steps to ensure that employees comply with the Travel Order.

Moreover, the Travel Order further states that “[e]mployers are also urged to strongly discourage their employees from taking leisure travel to non-lower-risk destinations.”

Second: What are the practical implications of the Travel Order for employers?

The practical implications of the Travel Order for employers are significant.

First, employees who travel out of state for a vacation or business may be subject to a mandated 14-day quarantine upon their return—depending on the travel destination. While remote work may address this impact for some, allowing employees to telework for two weeks upon return from travel is not always a viable option for employers. To that end, employers should consider the impact that interstate travel may have on business operations.

Second, the quarantine order may have a significant financial impact on employers. Earlier this year, Congress enacted the Families First Coronavirus ACT (FFCRA). The FFCRA will be in effect until December 31, 2020. The Emergency Paid Leave component of the FFCRA provides, in part, two weeks of paid leave to an eligible employee who is subject to a quarantine or an isolation order. K&S’ previous client alerts on the FFCRA are available here https://kslegal.com/covid-19/

The interplay between the Travel Order and the FFCRA generates the following inevitable result: an employee who engages in interstate travel (absent an applicable exemption) will be automatically entitled to two weeks of paid leave under the FFCRA upon return to the state—so long as the employee has not yet exhausted permissible leave under the FFCRA and meets the eligibility criteria.

For this reason, employers should consider taking the following steps: (1) limit or prohibit unnecessary interstate business travel; and (2) revisit vacation and PTO policies, along with any approved summer vacation requests, to better assess the consequences of an employee’s vacation or travel plans. Employers are strongly urged to consider reviewing and updating these policies, if necessary, at this juncture. Indeed, an employee’s one-week vacation to North Carolina, for example, may result in the employee being absent from work for at least three weeks with pay (when factoring in the two weeks of paid FFCRA leave the employee may be eligible for upon return).

Depending on the employee’s role, it may be that the employee can work remotely upon return from travel, or that alternative arrangements can be made to minimize the impact on business operations. In certain circumstances, however, that may not be possible. To that end, employers should assess vacation requests (even if already approved) and decide whether to inform employees that requests are now pending approval because of the Travel Order and the potential impact interstate travel can have on business operations. Employers can then gather information on the employee’s travel destination to assess whether: (a) the employee will be subject to a mandated quarantine (or potential quarantine) upon return; and (b) the employer can absorb the cost of leave, while also absorbing the impact the employee’s absence will have on business operations.

To minimize the impact that the Travel Order can have on an employer’s business operations, employers should review this with care and assess the potential consequences of interstate travel.

As noted above, the practical implications of the Travel Order may be significant for employers. Employers with specific questions relating to the Travel Order, policy or leave entitlements are encouraged to speak with an employment attorney.

[1] The Travel Order may be accessed here: https://www.mass.gov/info-details/covid-19-travel-order#how-to-quarantine-

[2] Please note that the states that are listed here were identified as lower-risk states as of August 19, 2020. States on the list may fluctuate and it is important to check the states on the list before and after traveling out of state. For additional information, please click here: https://www.mass.gov/info-details/covid-19-travel-order#how-to-quarantine-

[3] Additional information as to what is considered a “critical infrastructure function” may be found here: https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce; https://www.cisa.gov/sites/default/files/publications/Version_3.1_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_0.pdf

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