New York New COVID-19 Testing Mandate Struggles to Balance Traveler Privacy and Public Health

| Philip M. Nelson

New York state issued a new mandate requiring that all travelers test negative for the COVID-19 virus both before and after coming to the state. The mandate allows travelers to bypass the 14-day quarantine and requires that non-residents, and residents who leave the state for more than 24 hours, to have proof of a negative COVID-19 test within three days of travel, quarantine for three days, and get tested again on the fourth day. If both tests return negative results, the traveler is permitted to move freely in New York. New York residents who travel to another state for 24 hours or less must take a COVID-19 test within four days of arrival. Essential workers and New York residents returning from the neighboring states of New Jersey, Connecticut, Massachusetts and Pennsylvania are exempt from the new requirements.

New York’s new COVID-19 mandate raises questions of proper medical information confidentiality. Governor Cuomo stated that airports may have personnel “who could very well stop [travelers] and say, 'Can I see your test results?'" However, it is unclear which airport personnel will be authorized to demand test results from travelers and how such personnel will be identified. Cuomo also recently called for increased police and National Guard presence at the airports to better enforce the state's new testing rules. With an increase in armed forces present at the airport, travelers may feel compelled to produce their test results to anyone in airport-affiliated attire who inquires. Although the new mandate contemplates that travelers will produce their COVID-19 test results voluntarily, unless the new mandate limits and clearly identifies which airport personnel may request test information, where and how they do so, and for what specific use, travelers may be over-exposing their private medical information. For transparency and to safeguard citizen rights, New York airports should post privacy notices informing travelers regarding what information workers will be collecting at various checkpoints, why they are collecting this information, and with whom the information will be shared.

Travelers are allowed to opt out of taking a COVID-19 test, but will instead be required to quarantine for 14 days. However, quarantining in a hotel for 14 days can be extremely costly. Financial factors may compel travelers who would otherwise decline to reveal health information to nonetheless choose the path offered by the new mandate. Further, a major criticism to the 14-day quarantine requirement is the difficulty of enforcement. Should travelers choose to bypass COVID-19 testing under the new mandate, it is unclear who will track their location and how violations will be proven or citations issued. The challenge presented by the new mandated, it seems, is to find a balance between maintaining individual medical information privacy and protecting public health.