Even in more traditional times, summer posed staffing issues for most employers, as employers juggled employee vacation requests while working to maintain a functional workplace. Of course, the COVID-19 pandemic resulted in stay-at-home orders in most states which either limited the ability of some businesses to operate or resulted in businesses furloughing employees or having them work from home. As businesses reopen, many employers have imposed vacation restrictions to address pent-up demand. These restrictions are generally legal, if problematic from an HR standpoint, so long as the overall balance of vacation time is unaffected. Still, as COVID-19 infection rates rise in a number of areas, including many popular vacation destinations, employers are wondering how to address employees who are traveling for personal or business reasons.
First, restricting business travel to essential obligations remains the best policy and it is reasonable to consider the location of the travel as part of deciding whether it is essential or not. The website https://covidactnow.org has useful real-time information on infection rates, broken down on a county-by-county basis.
But, what of employees who are taking and returning from vacations? While off-duty conduct laws in many jurisdictions prevent employers from forbidding certain travel, the obligation to provide a safe workplace continues. Some states have begun taking the decision out of the hands of employers by imposing mandatory quarantine periods for travelers from certain states. New York, New Jersey, and Connecticut are requiring individuals traveling from certain sunbelt states to quarantine for 14 days, or be documented as COVID-19 free, before traveling freely in the state.
There are three general strategies for handling employees returning from “hot spots.”
- The method that offers the most protection to your workforce is to follow EEOC guidance that allows employers to require a COVID-19 test before allowing any individual to return to the workplace. Key things to remember with this process is that the policy must be enforced uniformly (i.e., travelers from certain locations are treated the same) and the tests cannot be taken too soon after the trip (it should be at least four days after returning home to reduce the risk of a false negative).
- The next most effective method would be to require a quarantine period, and again 14 days is the general CDC recommendation, with the expectation that the employee will work remotely if at all possible. The positive for this solution is that it ensures a safe workplace for your employees and reduces the risk of a complete shutdown because of a rampant illness in the workplace. The negative is that it significantly increases the amount of time your employees are out of the office.
- At a minimum, you need to put returning employees on a “heightened scrutiny” protocol for two weeks with onsite temperature screenings (as opposed to at-home screens) and limited workplace mobility. The risk of this process is that you will need to be vigilant that the restrictions are followed for the full two-week period.
These measures can also trigger the Family First Coronavirus Response Act ("FFCRA") for smaller employers (under 500 employees). Remember, the FFCRA requires two weeks (but no more than two weeks) of paid sick leave for employees who, for purposes relevant to this discussion, are unable to work or telework and are: 1) quarantined or isolated by a governmental agency; 2) quarantined or isolated by a health care professional; or 3) symptomatic and seeking a diagnosis. A mandatory state quarantine order would likely meet the first test. An employer-mandated quarantine would not be sufficient, but do not be surprised if the employee then tries to get a doctor to issue a quarantine order (but note the law requires a full quarantine and not just a “can’t work” excuse). If a returning employee develops symptoms, the employee may become eligible for FFCRA sick leave, but then again, it is best that a symptomatic employee is out of the workplace.
Summers also mean children going off to summer camps or summer programs, or at least it used to. Many of these programs have been canceled for 2020, which means the children may be stuck at home. As the FFCRA remains in effect through the end of the year, small employers still have the obligation to provide leave (either as paid sick leave or as expanded family and medical leave) where an employee is unable to work or telework due to the need to care for the employee’s child, whose “place of care” is closed for COVID-19 related reasons.
The regulation interpreting the FFCRA defines “place of care” to include summer camps and summer programs. The United States Department of Labor ("DOL") recently issued a Field Assistance Bulletin to clarify that employees may be entitled to FFCRA leave because a summer camp has been canceled, even where the summer camp’s closure was announced months ago and the employee’s child had not formally enrolled. A camp or program is closed for purposes of the FFCRA even if it is only partially closed such as operating at a reduced capacity.
According to the DOL, the “ultimate question” is whether there is evidence of a plan for the child to attend the camp at issue or whether it is more likely than not the child would have attended the camp or program had it not closed due to COVID-19. While the DOL recognizes that a “one-size-fits-all-rule” would not apply, it does provide some examples of what would be considered sufficient evidence:
- Actual enrollment in the camp or program before the announced closure.
- Submission of an application before the camp’s closure or submission of a deposit.
- Prior attendance by the child and current eligibility to attend in summer of 2020.
However, the DOL stated that none of these are necessarily required and that other indicators that a particular camp or program would have been the child’s place of care may be sufficient – the DOL gives a strong indication that the employee should be provided the benefit of the doubt. Nonetheless, the DOL’s bulletin does say that a “mere interest in a camp or program is generally not enough.”
- Employers should continue to restrict business travel to essential business.
- Employers may impose testing requirements and/or quarantines to employees voluntarily returning from COVID-19 “hotspots” or may subject these employees to workplace limitations.
- Small employers need to seriously treat FFCRA child care leave requests stemming from the closure of summer camps or programs and document them as they would any other request.