OUT-OF-STATE HOLIDAY TRAVEL DURING THE COVID-19 PANDEMIC
As COVID-19 cases continue to rise to record levels, and with more than 80% of the country on the NJ Travel Advisory (“Advisory”) for which a 14-day quarantine is required, and with the holiday season upon us, we all need to understand that travel to our sister states is at our own risk. Obviously, one risk is becoming sick. But, apart from that, we also risk having to self-quarantine for 14 days with all the ramifications that this entails.
In New Jersey, “[t]he 14-day quarantine travel advisory applies to travel from certain “impacted states” identified as those that 1) have an average daily number of new cases higher than 10 per 100,000 residents over a seven-day period or 2) have a 10% or higher positivity rate over a seven-day period. The advisory applies to travel from states that meet either of these levels.” See https://covid19.nj.gov/faqs/nj-information/travel-and-transportation/which-states-are-on-the-travel-advisory-list-are-there-travel-restrictions-to-or-from-new-jersey. Unfortunately, this now includes most of the country.
If a district or school is operating fully-remotely or has the ability to pivot its instruction smoothly from in-person to remote, personal leave options may not be necessary for the district or the employee to consider. Employees may be able to work remotely during the self-quarantine period. But, if a particular school employee is required to be in the school building and he/she will need to self-quarantine because of out-of-state travel, then a leave option will need to be considered.
It is important that all school employees have open and frank discussions about out-of-state travel plans with their employers prior to traveling so that both the employee and the employer can have clear expectations about how to address the necessity to self-quarantine should such travel warrant the same. Employees who do travel to a state on the quarantine list – and that is most states – should always inform their employer. Employees who fail to disclose that they have traveled to a state on the quarantine list could put themselves in jeopardy for disciplinary action for potentially having created a health risk for their school community.
The school employee’s paid-leave options generally will be limited to accrued personal, vacation, or sick days. An employee may also qualify to receive “emergency paid sick leave*” – up to 80 hours – under Families First Coronavirus Response Act (FFCRA), provided that he/she falls under one of six categories. It is important to note that the FFCRA is set to expire on December 31, 2020. Unless it is reauthorized, the options outlined below will not be available for any leave taken after that date. The FFRCA categories are as follows:
EMERGENCY PAID SICK LEAVE ACT*
Qualifying Reasons for Leave:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to
work (or unable to telework) due to a need for leave because the employee:
1 is subject to a Federal, State, or local quarantine or isolation order related to
2 has been advised by a health care provider to self-quarantine related to COVID-
3 is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4 is caring for an individual subject to an order described in (1) or self-quarantine
as described in (2);
5 is caring for a child whose school or place of care is closed (or child care
provider is unavailable) for reasons related to COVID-19; or
6 is experiencing any other substantially-similar condition specified by the
Secretary of Health and Human Services, in consultation with the Secretaries of
Labor and Treasury.
Under the FFCRA, an employee qualifies for expanded family leave if the employee is
caring for a child whose school or place of care is closed (or child-care provider is
unavailable) for reasons related to COVID-19.
Since New Jersey has a travel advisory which may not technically be construed as an order, an employee who has traveled to another state may need to have documentation from a health care provider advising that person to self-quarantine, or may need to document that he or she is experiencing COVID-19 symptoms and is seeking a medical diagnosis. The employee should consult with the district to determine if such documentation will be required by the district in order to be eligible for FFCRA leave.
Duration of Leave:
For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a
part-time employee is eligible for the number of hours of leave that the employee works
on average over a two-week period.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of
paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40
hours a week, and a part-time employee is eligible for leave for the number of hours that
the employee is normally scheduled to work over that period.
The leave options in the FFCRA do not have to be used all at one time, and may be used intermittently as needed.
Calculation of Pay:
For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their
regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and
$5,110 in the aggregate (over a 2-week period).
For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their
regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day
and $2,000 in the aggregate (over a 2-week period).
For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or
2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in
the aggregate (over a 12-week period).
Note: If the employee does not fall into any one of the categories listed, then the employee is not eligible for benefits under the Federal Emergency Paid Leave Act.
SEQUENCING OF PAID LEAVE
- Employers can let employees use the sick leave provided for under the FFCRA, followed by any other accrued paid leave under other laws or the CBA. See https://www.congress.gov/116/bills/hr6201/BILLS-116hr6201enr.pdf.
- Employers cannot require the employee to first use accrued leave, nor can the employer retaliate against an employee.
- Employees should also review Collective Bargaining Agreement provisions that may also provide for additional leave.
- It is important to note that the FFCRA entitlements only provide for up to 80 hours of emergency paid sick leave through December 31, 2020 for workers who are unable to work or telework.
- This FFCRA leave can be used BEFORE any other paid benefits are used.
Traveling and visiting with family this holiday season will present unique challenges and difficult choices. Beyond the self-quarantine and related potential-leave options outlined above, there are probably many other factors that will weigh on the travel decisions you make. Just be aware that your decisions may result in certain outcomes, like being required to self-quarantine for 14 days which may require the use of accrued leave. The following link to CDC guidance related to holiday celebrations and small gatherings may be helpful for you to be able to determine how best to make your travel and holiday celebration decisions. See https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/holidays.html.
If you are a member of NJPSA and would like additional clarification on these issues and your own situation, please reach out to NJPSA’s Legal Department at firstname.lastname@example.org .