By: Anne Dana, Shireen Wetmore, and Chantelle Egan
Increasing fears about community spread of COVID-19 have caused a growing number of states and other localities to issue orders requiring those who are traveling to or returning to the state from out-of-state or specific “hot-spots” to quarantine for up to 14 days.
The goal of such orders is to diminish community spread of the disease. However, for “essential” workers – who are frequently, but not always, exempted from such orders – this is adding one more complication. For example, how should employers address the quarantine requirement for employees who voluntarily travel outside the state during personal time? What about employees who are commuting across state lines to perform work the employer deems essential? And what about those whose job it is to transport essential goods across state lines, such as truck drivers and freight haulers, who may need to spend the night in the state?
In some cases, the orders provide certain exemptions from the quarantine requirement. Generally the exemptions include those in the airline industry, military, healthcare, or emergency response operations. Some orders also include exceptions for essential business needs, however, not all do. The orders without such a carve out could be problematic, as they could hinder the transport of necessary goods. More importantly, whether a business is “essential” may vary from state to state and locality to locality. (See some of our prior alerts discussing “essential businesses” here (Federal), here (NY), here (CA), and here (IL).
While some employees, contractors, and suppliers were already requesting documentation supporting their critical roles (see our blog on this issue here), these requests will likely increase with these new travel restrictions. This is particularly true as states are developing their own methods for tracking compliance with the mandates, ranging from requiring proof of purpose of travel to completion of forms to requirements that businesses affirmatively submit a plan for avoiding the spread of COVID-19 to the local state agency.
The following is a high level overview of the state ordinances currently in effect as of this writing:
- Alaska: Alaska has issued Health Mandates requiring the quarantine of both intrastate travelers (Health Mandate 12) and interstate travelers (Health Mandate 10.1). The mandates exempt those who support critical infrastructure. However, those who believe their business in Alaska support critical infrastructure are required to submit a plan or protocol to the Dept. of Commerce outlining, inter alia, how they will support that infrastructure and protect the community from the spread of COVID-19. Individuals arriving in Alaska must also complete a Mandatory Travel Declaration. Failure to comply with quarantine is punishable by fine up to $25,000 or imprisonment of not more than one year. Falsification of information on the travel form may be classified as a felony.
- Delaware: The Governor modified the declaration of emergency to require anyone entering Delaware from another state, and who is not merely passing through, to self-quarantine for 14 days from the time of entry or for the duration of the stay, whichever period is shorter. The order does not apply to public health, public safety, or healthcare workers, or any other individual providing assistance to an Essential Business or providing an emergency service related to COVID-19. Nor does it apply to individuals commuting into Delaware to work for an Essential Business or to perform Minimum Business Operations. Nor does it apply to those traveling to care for a family member, friend, or pet in Delaware, or to the transport of family members, friends pets or livestock. Violation is a criminal offense. The order went into effect on March 30th and is retroactive.
- Florida: Florida’s original order (EO 20-82) required any person whose point of departure originates from outside the State of Florida in an area with substantial community spread, to include the New York Tri-State Area (Connecticut, New Jersey and New York), and entering the State of Florida through airports to isolate or quarantine for a period of 14 days from the time of entry into the State of Florida or the duration of the person’s presence in the State of Florida, whichever is shorter. The order does not apply to persons employed by the airlines or those performing military, emergency or health response. The effective date of the order was on March 24, 2020.
A subsequent order (EO 20-86) expanded the quarantine to include those entering Florida by roadways and to include the State of Louisiana, and exempted those performing “military, emergency, health or infrastructure response, or persons involved in any commercial activity.” The order took effect on March 27th and applies retroactively to all persons who have been in an area with substantial community spread. It also directs for checkpoints on roadways for those entering Florida, and requires persons to provide information, including in a written form, regarding the origin of their travel and the address of their location of isolation or quarantine. Violation of the order is a second-degree misdemeanor and is punishable by imprisonment not to exceed 60 days, a fine not to exceed $500, or both. Violators must also be reported to the state department of health.
- Hawaii: As of March 26, 2020, pursuant to the Second Supplemental Proclamation, all persons entering Hawaii, “except those persons performing emergency response or critical infrastructure functions who have been exempted by the Director of Emergency Management,” are subject to a mandatory 14 day quarantine (or the duration of their stay in Hawaii, whichever is less). The order currently applies to all travel through May 20, 2020. Violations are subject to a fine of up to $5,000 or up to one year in prison, or both.
- Kansas: On March 27th, the Kansas Department of Health and Environment issued an updated quarantine requirement for Kansans who had travelled to certain hot-spots on or after specific dates as listed in the mandate, including Louisiana, Florida, Washington, Illinois, New Jersey, California, New York, and certain counties in Colorado, as well as any international or cruise ship travel. The mandate does not apply to critical infrastructure sectors, including public health, hospitals, clinics, pharmaceuticals and food supply.
- Maryland: The Governor of Maryland has announced that no Marylander should be travelling outside of the state and that those who have traveled outside of the state should self-quarantine for 14 days. However, the order issued on March 30th did not include a reference to this requirement.
- Massachusetts: Unlike many of the other states on this list, the Governor of Massachusetts has issued an that travelers should self-quarantine for 14 days, but has not issued and order and there is no enforcement mechanism. Travelers arriving at the airport and train stations will receive fliers advising them to quarantine and similar advice will be posted along highways. Other states have followed suit by requesting quarantines, without directly ordering them, including New Hampshire, , and Nevada.
- New Mexico: The order directs all persons whose travel to New Mexico is through an airport and whose point of departure originates outside of New Mexico to self-isolate or self-quarantine for a period of at least 14 days from the date of their entry into the State of New Mexico or for the duration of their presence in the State, whichever is shorter. The order defines the terms “self-isolate” and “self-quarantine”. The order does not apply to persons employed by airlines and those performing public safety or public health functions, such as military personnel, federal employees, those employed by a federal agency or national defense contractor, emergency first responders, healthcare workers, or individuals who are employed by shipping and freight companies. It also directs the New Mexico Department of health to ensure compliance and enables civil or criminal penalties if warranted. The effective date of the order was March 27th.
- North Dakota: Requires that all individuals traveling back to North Dakota from international locations and states in the U.S. that have been classified as having widespread disease by the CDC (and includes a list) must quarantine upon reentry to the state of North Dakota for 14 days. Any “critical infrastructure workers,” as defined by the United States Department of Homeland Security are exempt. Failure to comply can result in 30 days of imprisonment and/or up to a $1500 fine.
- Oklahoma: The order provides that all persons who enter the state by air from an area with substantial community spread, which includes New York, New Jersey, Connecticut, Washington, California and Louisiana to quarantine for a period of 14 days or the duration of the person’s stay, whichever is shorter. It does not apply to those employed by airlines or to those performing military, emergency or health response. The order took effect on March 29th and applies retroactively. The order is unique in that it also requires individuals who have traveled to any of these areas to inform any individual in Oklahoma with whom they have had direct physical contact in the past 21 days of that travel.
- Rhode Island: The order provides that any person coming to Rhode Island from another state for a non-work-related purpose must immediately self-quarantine for 14 days. The order does not apply to “public health, public safety, or healthcare workers.” The order makes clear that any person who works in another state and cannot telework must self-quarantine when not at work (except those subject to the above exclusions). The order took effect on March 28th.
- South Carolina: The order provides that any individuals who enter the State of South Carolina from an area with substantial community spread, including New York, New Jersey, and Connecticut and the City of New Orleans, Louisiana, shall isolate or self-quarantine for a period of fourteen (14) days from the time of entry into the State of South Carolina or the duration of the individual’s presence in South Carolina, whichever period is shorter. The order does not apply to individuals employed by airlines and individuals performing or assisting with military, healthcare, or emergency response operations. The order is effective as of March 27, 2020 and is in duration for the State of Emergency unless otherwise modified or amended.
- Texas: The order (EO-GA-11) provides that any person who enters Texas as the final destination through an airport, from a point of origin or point of last departure in New York, New Jersey, Connecticut, or New Orleans, to quarantine for 14 days from the date of entry or the duration of the person’s presence in Texas, whichever is shorter. The order excludes those traveling in connection with military service, emergency response, health response, or critical infrastructure functions. Covered persons have to fill out a form that designates the quarantine location and other information. Violations are a criminal offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both. The order went into effect on March 28th.
Texas then expanded the locations in a subsequent order to include air travel from California, Louisiana, Washington, Atlanta, Chicago, Detroit, and Miami. This went into effect on March 30th.
It also expanded the quarantine requirement to address road travel from Louisiana in another subsequent order (EO-GA-12). This order also excludes those traveling in connection with commercial activity — in addition to the above excluded categories of military, emergency / health response, and critical infrastructure. This order also went into effect on March 30th.
- Vermont: The order requires that residents and non-residents coming from outside the state self-monitor and home-quarantine for a period of 14 days. This does not apply if the travel is for an essential purpose. The order defines essential purpose to include travel required for: personal safety; food, beverage or medicine; medical care; care of others; and to perform work, services or functions deemed critical to public health and safety, as well as economic and national security, as set forth in Stay Home/Stay Safe. Visitors are instructed not to travel to Vermont if they are coming from cities or regions identified as “hot spots” including Florida, Louisiana, Detroit, Chicago, New York City. It also orders residents of New York, New Jersey, and Connecticut to stay in their home states in strict compliance with CDC travel guidance. The order took effect March 30th.
Compliance aside, Constitution law scholars are likely gearing up to respond to (and even bring) challenges to these various orders based on, for example, the Commerce Clause, Article IV of the United States Constitution (“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”), the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”) and other, similar protections designed to facilitate travel and commerce between states. Perhaps with that in mind, several states appear to be limiting orders or recommendations to residents of that state only, referring to “Statelanders” instead of all travelers in and out of State. Needless to say, the situation remains fluid.
In the meantime, however, the growing number of orders, each with unique exceptions and requiring varying forms of documentation, will require close attention from businesses relying on the interstate travel of workers and goods during this pandemic.
The COVID-19 landscape continues to rapidly evolve at the federal, state and local level. Companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these ever-changing provisions. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest.