Responding to the Coronavirus – New York Guidance on Monitoring and Testing
March 12, 2020
Since our last alert on the Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”), dated March 2, 2020, the number of cases of Coronavirus has increased significantly, as has the number of affected countries. On March 11, 2020, the World Health Organization (“WHO”) characterized COVID-19 as a pandemic.
In the United States, the federal government is working with state and local partners, as well as health departments to respond to the potential widespread transmission of COVID-19 in the United States. The Center for Disease Control and Prevention (“CDC”) has implemented its pandemic preparedness and response plans, including providing specific guidance measures to prepare communities to respond to local spread of the Coronavirus. While the CDC continues to provide support and guidance, the federal government is encouraging state and local health departments to assist in managing the testing and response to COVID-19. As of March 8, 2020, state and local public health labs in all 50 states have kits to test for the Coronavirus.
New York State Response
The New York State Department of Health (“NYSDOH”) has been closely monitoring the situation, and New York State has responded to a significant increase in the Coronavirus in the state. On March 7, 2020, there were a total of 76 confirmed cases of the Coronavirus in New York State. As of March 11, 2020, there were a total of 216 confirmed cases statewide, with 121 in Westchester County and 52 in New York City.
On March 7, 2020, New York Governor Andrew Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the virus. Among other things, the declaration will allow:
- expedited procurement of cleaning supplies, hand sanitizer and other essential resources;
- allowing qualified professionals other than doctors and nurses to conduct testing;
- expedited procurement of testing supplies and equipment;
- expedited personnel onboarding;
- expedited leasing of lab space;
- allowing EMS personnel to transport patients to quarantine locations other than just hospitals
On March 10, 2020, Governor Cuomo implemented an emergency measure to contain the Coronavirus “cluster” in New Rochelle for a two-week period, by closing schools, houses of worship and other large gatherings within a one-mile radius in New Rochelle. In addition, National Guard troops have been deployed to a Health Department command post in New Rochelle to assist with the outbreak in that community. Employers should consider how this order may impact the use of sick time under earned sick time laws. The New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave Law, both allow for paid time off due to office or school closures during public health emergencies.
In addition, New York State and New York City have prepared interim containment guidelines for home self-monitoring from possible exposure to the Coronavirus.
New York State Guidance on Monitoring
The NYS Guidance provides directives for isolation or quarantine based on the status of the individual. The NYSDOH uses the following definition to determine whether to institute mandatory or precautionary quarantine:
- Mandatory Isolation - required for persons who have tested positive for the Coronavirus, whether or not displaying symptoms.
- Mandatory Quarantine - required for persons who:
- have been in close contact (6 feet) with someone who has tested positive for the Coronavirus, but is not displaying symptoms, or
- have traveled to China, Iran, Japan, South Korea or Italy, and is displaying symptoms of the Coronavirus.
- Precautionary Quarantine - for persons who meet one or more of the following criteria:
- has traveled to China, Iran, Japan, South Korea or Italy while the Coronavirus was prevalent, but is not displaying symptoms;
- is known to have had exposure to a positive person, but has not had direct contact with a positive person, and is not displaying symptoms.
The NYS Guidance provides that persons who are isolated or quarantined must be treated with compassion and respect, and Local Health Departments (“LHD”) must help these individuals to meet their housing, social, medical, mental health and economic needs. The NYSDOL recommends that LHDs issue orders to implement mandatory isolation or quarantine, while written agreements should be used for precautionary quarantine in order to increase compliance. Under the NYS Guidance, LHDs must immediately issue an order for mandatory isolation or quarantine once notified.
Prior to the implementation of mandatory isolation or quarantine, LHDs must assess whether the person’s home is safe to allow the person to remain and avoid transmission to others in the household. If the home is not safe to avoid transmission, the LHD must identify a safe place for the exposed person and/or their household members to live during the monitoring period. During mandatory isolation or quarantine, LHDs must perform at least one in person visit per day, and establish electronic communication as least once per day that establishes presence in the residence. The LHD must also create an action plan for what to do if the isolated person becomes ill.
For a precautionary quarantine, the person must have separate quarters with separate bathroom facilities, and a way to self-quarantine from household members as soon as a fever or other symptoms develop. There are no required in-person visits by LHDs. However, there must be electronic communications at least once a day utilizing a mechanism to get a status and health update, and to provide advice.
The NYS Guidance cautions that “No person subject to an order shall have an adverse employment impact.” Moreover, no LHD or political subdivision in the state may release any information related to a person who is subject to an isolation or quarantine order, and any requests for information must strictly adhere to HIPAA and related privacy laws.
New York City Guidance on Self-Monitoring
The NYC Guidance is written in a question and answer format, and provides information concerning self-monitoring for people who return from countries designated by the CGC, and their return to work or school.
The NYC Guidance provides that anyone returning from an area designated by the CDC, within the last 14 days, will be screened at the airport for COVID-19 symptoms and risk factors for the virus. After the screening:
- Travelers arriving in NYC, who have no symptoms, will be transported to a quarantine location in NYC, as directed by the CDC.
- Most travelers who have no symptoms will be given information about home self-monitoring, and can continue to their destination. Their local health department will be in contact with them to provide more information.
- Others with possible exposure to the virus may be asked to home self-monitor by the NYC Health Department.
For those who are asked to self-monitor, they should take the following measures:
- take their temperature twice a day;
- check for symptoms, such as cough or shortness of breath;
- stay at home and remain out of public areas. Do not go to work or school. However, members of the household that were not in one of the CDC-designated countries may continue to go to work or school;
- continue this for 14 days since leaving the CDC designated country;
- if a fever or symptoms appear during self-monitoring, avoid close contact with others (6 feet) and call the NYC Health Department at 347-396-7990 for further instructions;
- if a medical problem develops during self-monitoring for which they need to see a doctor or health care provider, call the provider ahead of the visit and let them know about recent travel;
- if a medical emergency develops during self-monitoring, call 911 and advise the operator about recent travel;
- although it is normal to feel sad, anxious or overwhelmed, if symptoms become worse, reach out for support by calling NYC Well at 888-NYC-WELL
The NYC Guidance further provides that after the 14-day self-monitoring period, if no fever or symptoms appear, the person can return to work or school. No formal clearance process is necessary. Moreover, “[t]here is no medical reason for your work or school to exclude you after the home self-monitoring period is over,” and a report can be made to the NYC Commission on Human Rights, by calling 311 and saying “human rights.” To the extent requested, doctor’s notes are available on the NYC Health Department’s website at nyc.gov/health/coronavirus.
New York State Guidance on Testing
Finally, until New York reaches full testing capacity, the NYSDOH has issued a guidance for authorization for COVID-19 testing in order to ensure that resources are being distributed efficiently. Testing shall be authorized by a health care provider when:
- an individual has come in proximate contact (i.e., same office, classroom or gathering) with another person known to be positive for the Coronavirus;
- an individual has traveled to a country that CDC has issued a Level 2 or 3 Travel Health Notice, and shows symptoms of illness; or
- an individual is quarantined (mandatory or precautionary), and has shown symptoms of the Coronavirus; or
- an individual is symptomatic and has not tested positive for any other infection; or
- other cases where the facts or circumstances warrant testing as determined by a treating clinician in consultation with state and local health department officials.
Takeaway for Employers
Employers should continue to monitor guidance from the CDC, the NYSDOH, and state and local government agencies for further updates concerning responses to the Coronavirus, and consider how these guidelines impact their employment policies, including privacy, discrimination and earned sick leave policies.
These materials were prepared by Putney, Twombly, Hall & Hirson LLP prior to their combination with Bond, Schoeneck & King for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create an attorney-client relationship or an attorney-client privileged communication. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.