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Remember Vacations? Considerations for Employers When Addressing Employees’ Personal Travel During COVID-19 (US)

It’s been more than six months since the COVID-19 pandemic took hold in the United States, and during this period, most of us have remained either in, or very close to, our homes. Although a second wave of infections now appears to be starting, the colder temperatures of winter, the approaching holiday season, or the desire for a change in scenery or to see much-missed loved ones may lead people to finally venture away from home. As a result, many employers have questions about how to handle their employees’ personal travel plans during this pandemic and how to respond to the potential safety risks employee personal travel poses to their workforce. Like everything else COVID-related, these issues are constantly evolving and many of the answers to these questions hinge on state-specific requirements, but there are some universal best practices employers should consider when addressing their employees’ personal travel plans.

Inquiring About Employees’ Personal Travel

Guidance from the Center for Disease Control and Prevention (“CDC”) explains that traveling increases an individual’s chances of contracting and spreading COVID-19, and that staying home is the best way to protect against becoming infected with the virus. As a result, many if not most employers have significantly limited nonessential work-related travel. Some employers also may be tempted to prohibit or restrict their employees’ ability to travel for personal reasons. Although it is not advisable for employers to prohibit employee personal travel altogether – both for legal and employee-relations reasons – employers do have some tools they can use to help ensure that they maintain a safe workplace while also accommodating employees’ personal travel desires.

For example, employers can require their employees to disclose any recent travel or travel plans and can inquire about an employee’s travel so long as such inquiries are made of all employees and the questions asked are not overly intrusive and are consistent with business needs. Further, employers can educate employees about the risks associated with traveling during the pandemic and advise employees about the CDC’s recommendations regarding safe practices while traveling (e.g., mask wearing, hand washing, physical distancing, etc.). In addition, employers should consider requiring employees returning from travel (work-related or person) to complete post-travel health surveys or questionnaires prior to returning to the workplace, in which the employer can ask the employee to confirm that they are not experiencing any COVID-19 symptoms. Employers additionally should remind employees of any mandatory state guidelines or company policies that may require the employee to self-quarantine upon their return.

Requiring Returning Employees to Self-Quarantine or Provide Negative Test Results

Because of the risks associated with travel, it may be advisable to require employees to quarantine after an out-of-state trip before allowing them to return to the workplace. Although there is no federal requirement that individuals quarantine after travel, employers should be aware that many states and municipalities have implemented travel restrictions, advisories, and/or requirements that may apply to their traveling employees. These requirements apply to all individuals traveling into the state, which includes both incoming visitors and residents returning home from another state. Typically, these states either recommend or require that incoming travelers quarantine for 14 days if they are arriving from place that the state deems “high-risk” based on the location’s COVID-19 positivity rate.

In some states, a recent negative COVID-19 test can exempt the traveler from a mandatory quarantine requirement. However, other states do not have this exemption and instead require individuals to quarantine for the full 14 days even if they have proof of a negative COVID-19 test. Therefore, employers in states with mandatory post-travel quarantine requirements should consult local law and proceed with caution when considering whether to allow an employee to return to the workplace based solely on a negative COVID-19 test. It is important to note that employers in states that do not require incoming travelers to self-quarantine may still consider implementing a mandatory quarantine period for their employees post-travel as a company policy, as long as it is consistent with business necessity and it does not violate any state or local laws.

Due to the state-specific nature of these issues, employers should consult with an attorney to ensure they are complying with state and local requirements when allowing employees to return to work post-travel.

Whenever possible, employers should allow employees subject to a 14 day quarantine requirement to work remotely for the requisite time following their return from an out-of-state trip. If remote work is not feasible, employers need to be aware of the potential paid leave obligations that may be implicated.

Eligibility for Paid Leave and Other Leave Considerations

Employees who are required to self-quarantine after travel and who are unable to work or telework as a result may be entitled to paid leave under the Families First Coronavirus Response Act (“FFCRA”) or other paid leave for the time spent quarantining. Specifically, if there is a state or local order mandating that travelers quarantine following travel, the employee may be eligible for FFCRA paid leave (depending on the employer’s size and other eligibility criteria); the fact that the employee’s trip was personal would not appear to affect their eligibility for leave. However, if the state’s travel and quarantine guidance are advisory, employees returning from vacation who choose to quarantine or who are required by their employer to quarantine, are likely not eligible for paid leave under the FFCRA, unless the employee qualifies under a different reason.

For example, an employee may be eligible for paid leave under the FFCRA if the employee is unable to work or telework because the employee has been advised by a health care provider to self-quarantine or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. As we have discussed in our previous posts regarding the FFCRA, determining whether an employee qualifies for paid leave requires a complex, fact-intensive analysis, and employers are strongly encouraged to consult their attorney when evaluating whether their employees are eligible. Employees who are not eligible for paid leave under the FFCRA may still use paid vacation, sick leave, or any other accrued paid time off during the quarantine period.

Further, employers should consider reviewing their current leave policies in light of the unique challenges presented by this crisis. Many employees may have used less PTO during the pandemic, which may lead to an increase in employee requests for leave at the end of the year. This is particularly true for those employers with use-it-of-lose-it vacation policies (in those states where such policies are permitted). In addition, these employers should be prepared to address potential complaints from employees about the unfairness associated with forfeiting unused PTO considering the inability to safely travel during most of this year. To remedy some of these issues, employers with use-it-or-lose-it policies may want to consider reevaluating their leave policies to address these concerns.

Conclusion

In order to keep the workplace safe and to manage employee expectations, employers should implement clear travel policies and procedures that comply with CDC guidelines as well as state and local requirements. These policies should be in writing and should apply uniformly to all employees. Further, as with any employment policy, it is imperative that employers effectively communicate their travel and return-to-work policies to their employees, and they should remind employees periodically of their obligations under such policies to ensure compliance.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 296
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About this Author

Melissa Legault Labor & Employment Attorney Squire Patton Boggs Phoenix, AZ
Associate

Melissa Legault is an associate in the Phoenix office, where she focuses her practice on labor and employment matters. Melissa assists employers in diverse matters related to their employment relationships. She routinely researches and analyzes legal authorities for drafting memoranda, pleadings and position statements related to employment law. Melissa also conducts legal research on employment case law and current events to help clients achieve their goals while complying with frequently changing regulations.

Melissa graduated magna cum laude from the...

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