Massachusetts Quarantine Order Poses Challenges for Employers

As of August 1, all travelers to Massachusetts must complete a travel form and quarantine for 14 days upon arrival in the state unless the traveler meets one of the enumerated exemptions. Each day of failure to quarantine when required, and each other instance of non-compliance may result in a separate $500 civil fine.

The Order applies to all residents and non-residents who have been outside of Massachusetts for any period of time immediately before their arrival, including all students traveling into Massachusetts to attend any academic program.

Any person who travels to Massachusetts and is not exempt from the quarantine requirement must commence the required quarantine upon arrival. The traveler shall be released from the quarantine requirement if he obtains a negative test result for COVID-19 from a test administered after the arrival in Massachusetts. A traveler released from the quarantine requirement must be able to produce proof of the negative test result on request.

These are the exemptions from mandatory quarantine:

• COVID-19 Lower-Risk State: Travelers from a state-designated by the Commissioner of the Department of Public Health (the DPH) as a COVID-19 lower-risk state are exempt from the order. The lower-risk states as of July 31 are Connecticut, Maine, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The DPH Guidance that accompanied the Order notes that this list is subject to change.
• Negative COVID-19 test: Travelers who have received a negative test result for COVID-19 from a test performed on a sample taken no longer than 72 hours before the person’s arrival in Massachusetts and can produce proof of the negative test result on request.
• Persons in Transit: Travelers passing through Massachusetts only in the course of transit to another place by car, bus, train, or plane.
• Persons Commuting for Work or School: Persons who reside in Massachusetts and commute to a fixed place of work or school outside of Massachusetts, or who reside outside Massachusetts and commute to a fixed place in the state.
• Patients Receiving Medical Treatment: Patients who are seeking or receiving specialized medical care from a physician located in Massachusetts and persons accompanying and providing support to the patient.
• Military Personnel: Persons who are required to travel to Massachusetts at the order or directive of a federal or state military authority.
• Persons Performing Critical Infrastructure Services: Persons who enter Massachusetts to perform a critical infrastructure function as defined by the federal government, provided that this exception shall apply only when such person is actively engaged in performing that function. At all other times, a person who enters under this exemption shall be required to comply with the Order unless some other exemption applies.

Guidance for Employers

The Order amends the COVID-19 Workplace Safety Rules that were adopted in a previous Executive Order to include the following provision:

• Employers should take measures to ensure employees comply with all State-issued rules concerning out of state travel for any employer-paid or employer-reimbursed travel.

Furthermore, the mass.gov website provides information for employers in connection with the Order. Please note that these provisions are not part of the Order.

• Employers are strongly discouraged from requiring or allowing business-related travel to non-lower-risk states. Employers are also urged to strongly discourage their employees from taking leisure travel to non-lower-risk destinations.

What Steps Should Employers Take In Light of the Order

We recommend that employers consider implementing the following:

1. Reduce or eliminate business travel to non-lower-risk states whenever possible and strongly discourage employees from taking leisure travel to non-lower-risk destinations.
   1. If an employer is particularly concerned about the risk of employees taking leisure travel to non-lower-risk destination, consider adopting a travel policy that prohibits all employees from traveling to non-lower-risk states for the duration of the quarantine Order.
2. When an employee does have to travel to a non-lower-risk state, either for work, leisure, or to assist a family member who is unwell, remind the employee to comply with the Order by filing out the travel form upon his or her return to Massachusetts.
3. Encourage, or require through a policy, all employees who plan to travel to a non-lower-risk state to either (1) get tested for COVID-19 within 72 hours of their entry, or re-entry, into Massachusetts or (2) get tested for COVID-19 as soon as possible upon their return to Massachusetts in order to minimize, or eliminate, the time the employee will be required to quarantine upon entry/re-entry into Massachusetts. Employers can require employees who travel to non-lower-risk states for leisure purposes to pay for the costs of the tests, consistent with the terms of the Order.
   1. Employees who get tested upon their return to Massachusetts will still be required to quarantine until they receive a negative test result, but a mandatory testing policy is a good way to cut down on the number of required quarantine days for employees traveling to or from non-lower-risk states.
4. Employers should be aware that employees who are required to quarantine pursuant to the Order and cannot work remotely, are 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 location order related to COVID-19. The EPSLA generally provides up to 80 hours of paid sick leave to employees facing quarantine, experiencing COVID-19 symptoms and seeking medical attention, or caring for a son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.