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07.30.2020 | Legal Advisory

The Order

Superseding his previous travel advisory, Governor Baker has issued Executive Order No. 45, mandating that all travelers to Massachusetts must complete a Travel Form and quarantine for 14 days after arriving in Massachusetts unless the traveler meets an exemption (the “Order”). Non-compliance may result in a fine of up to $500 per day. This Order applies to residents, non-residents, students, individuals traveling for business, and individuals traveling for leisure. Governor Baker authorized the Massachusetts Department of Public Health (the “DPH”) to enforce the Order and to release relevant guidance. The Order is effective at 12:01 a.m. on August 1, 2020.

The Order contains several exemptions to the mandatory quarantine:

• COVID-19 Lower-Risk State: Travelers arriving from a state identified by the DPH as a COVID-19 lower-risk State are not required to complete the Travel Form and are not required to quarantine. COVID-19 lower-risk States are included on the list based on meeting two criteria: average daily cases per 100,000 below six AND a positive test rate below 5%, both measured as a seven-day rolling average. This list will evolve over time as health metrics are updated. The Order still urges residents to limit any out-of-state travel to lower-risk States.
• Negative COVID-19 Test: Travelers who can produce proof of a negative COVID-19 test administered no earlier than 72 hours prior to their arrival in Massachusetts will not be required to quarantine. Travelers who have taken a COVID-19 test, but are awaiting results, must quarantine until a negative test result is received. The testing must be a method approved by the DPH. Results of antibody tests are not acceptable. The Order strongly urges visitors to obtain a negative test result prior to traveling to Massachusetts.
• Transitory Travelers: Travelers who are merely passing through Massachusetts by car, bus, train, or plane are exempt from the Order, provided they stay only so long as is reasonably required to complete their transit, make any necessary connection, or to use a highway rest stop.
• Regular Commuters: Travelers who regularly commute to a fixed place in or outside of Massachusetts to attend work or school are exempt from the Order. The exemption applies only to travel to and from the individual’s residence and place of work or school. Individuals who travel to any place that is not their home state for personal or leisure reasons cannot rely on this exemption to avoid quarantine.
• Medical Patients: Travelers who are patients seeking or receiving specialized medical treatment from a doctor in Massachusetts and persons accompanying them and providing needed support are exempt from the Order.
• Military Personnel: Travelers who are military personnel traveling to Massachusetts under the order or directive of a federal or state military authority will be exempt from the Order.
• Workers Providing Critical Infrastructure Services: Travelers who are workers who provide critical infrastructure services, as designated by the federal government, and who enter Massachusetts to perform such services, are exempt from quarantine while they are commuting to or from work and while they are at work. These individuals must quarantine when they are not at work or commuting to work for 14 days after their arrival or until receiving negative COVID-19 test results.

Relevant Questions for Employers

1. My employee who performs a federally designated critical infrastructure function recently returned from vacation. Can I require him or her to come to work?

It depends. If the employee traveled to a COVID-19 lower-risk State or is exempted from the quarantine order because the employee has a qualifying negative COVID-19 test, the employee may return to work without quarantine. 

The Governor’s Order does not specifically address whether employees who provide critical infrastructure services and have traveled to or from Massachusetts for personal or leisure reasons are required to quarantine. The guidance released and posted at Mass.Gov however, clarifies that “Workers who travel to or from Massachusetts for personal or leisure reasons cannot rely on this exemption.” This aligns with the Order’s language discouraging personal travel to high-risk areas. The impact will be challenging for employers – employees that choose to travel for personal or leisure reasons to states that are not COVID-19 lower risk States will have to quarantine upon return to the Commonwealth and will be entitled to paid time off during this quarantine, as addressed in more detail below.    

2. Will Emergency Paid Sick Leave apply when an employee is quarantining?

Yes – and this is an important change. In contrast to Governor Baker’s previous travel advisory, this is an Order that clearly mandates quarantine. As a result, an employee subject to such quarantine is entitled to the benefits of the Emergency Paid Sick Leave Act (“EPSLA”) because the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19. As noted above, this will apply to an employee who provides critical infrastructure services but nevertheless is required to quarantine following travel for personal or leisure reasons to a state that is not a COVID-19 lower-risk State. 

Generally, employers are required to provide an employee with EPSLA leave equal to the number of hours that employee is scheduled to work, on average, over a two-week period, up to a maximum of 80 hours. Here, employees are entitled to the greater of their regular rate of pay, the federal minimum wage in effect under the FLSA, or the applicable state or local minimum wage up to $511 per day. As a reminder, employers may claim tax credits for employees’ paid leave under EPSLA.

If an employee has exhausted his or her paid sick leave under the EPSLA, the Massachusetts Attorney General encourages employers to allow the employee to use earned sick time, other paid time off, or unpaid leave during quarantine.  

3. Can my employee use leave under the EPSLA if he or she can work from home?

No. In order to be eligible for EPSLA leave, the employee must be unable to work. If the employer permits teleworking, the employee may work from home during the quarantine period. 

4. Can I prohibit my employees from traveling to an area subject to the 14-day quarantine?

Yes. Employers may impose travel policies designed to ensure the safety of employees as a term and condition of employment. Employment in Massachusetts is generally “at-will,” and an employee may be terminated for any reason, including for not complying with a travel policy that is applied to all employees in a non-discriminatory manner. Here, employers can prospectively tailor their travel policies to be consistent with the Order.  

Consistent with these interests, employers may impose policies that require employees to notify employers of personal travel outside of Massachusetts, and may prohibit employee travel to or decline employees’ vacation requests for travel to higher-risk areas of the country subject to Massachusetts’ 14-day quarantine requirement, so long as these policies are applied to all employees in a non-discriminatory manner. Indeed, the Commonwealth (through the Order and updated safety guidance for Massachusetts businesses) urges employers to discourage employee travel to high-risk areas. 

Further, the Order requires either a 14-day quarantine period or a negative COVID-19 test. Employers may require employees to submit to the COVID-19 test to shorten the amount of time that employees would otherwise be in quarantine.  

5. Can employers require employees returning from vacation to receive a test at the employee’s cost?

DPH guidance states that travelers who obtain a test after arrival in Massachusetts must arrange for the COVID-19 test at their own expense. Employers may be able to discourage employees’ personal travel by instituting a policy that requires employees returning from travel to high-risk areas to submit to COVID-19 tests at their cost before returning to work. Employers should bear in mind that employees would still be eligible for EPSLA leave while awaiting the results of the test, as they would continue to remain under the quarantine order during that time.  

What’s Next?

We are continuing to monitor travel advisories and restrictions, and can assist employers in developing best approaches to these workplace issues. 

This advisory was prepared by Liam O’Connell of Nutter’s Labor, Employment and Benefits practice group. If you would like additional information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.