The onset of summer, coupled with a growing number of cities and states engaging in the “reopening” process, means an increase in personal travel. In fact, nearly one-third of Americans traveled over the Memorial Day holiday, and recent news reports highlighted large gatherings at beaches and other vacation spots on the July 4 Weekend. Some of those travelers have tested positive for the COVID-19 after attending holiday celebrations.
The inevitable increase in personal travel coincides with the reopening of workplaces and lifting of stay-at-home orders in many states. As employees report to work, both employees and employers are concerned that employees who engage in personal travel to areas affected by COVID-19 may jeopardize the safety of the workplace. Every employer should have a return-to-work plan that sets forth its COVID-19 workplace safety policies. These policies should guide an employer’s response to an employee diagnosed with, or experiencing symptoms of COVID-19, and should include social distancing, enhanced sanitation and cleaning measures and require the use of personal protective equipment. But how can an employer maintain a safe workplace when employees may be returning from personal travel to an area affected by COVID-19?
Can an employer prohibit or restrict an employee’s personal travel?
The answer to this question is not black and white, but requires an understanding of applicable state and federal laws. Initially, the laws of many states provide that an employee’s employment is “at will” unless the parties have a written agreement providing otherwise, and employers generally have discretion to institute policies to ensure the safety of their employees. Under “at-will” employment, an employee can be terminated for any reason — or no reason — so long as the employee’s conduct does not violate public policy or state law (such as engaging in illegal discrimination). But just because the law may allow employers to prohibit or restrict employee personal travel and enforce travel restrictions under penalty of termination, there are both practical and legal considerations to consider before instituting such a policy.
Some states prohibit employers from taking adverse action on the basis of an employee’s lawful activity that occurs away from the employer’s premises. For example:
- Colorado: Employers are prohibited from terminating an employee based on the employee's engagement in any lawful activity away from the employer’s premises during nonworking hours.
- New York: It is unlawful for employers to discriminate against employees for engaging in recreational activities outside of working hours, off the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal.
Under such a law, the employer could not restrict its employees from engaging in otherwise legal activity such as personal travel to areas affected by COVID-19. Nor could an employer prevent an employee from traveling to render care to a family member with a serious health condition under the Family Medical Leave Act (FMLA).
However, employers do have the ability to maintain safe workspaces when employees travel inside or outside the U.S. during the COVID-19 pandemic.
What steps should employers take to maintain a safe workspace during the summer travel season?
First, an employer may instruct employees to inform the employer of past or future travel plans to allow the employer to reasonably evaluate the risk to other employees or customers. If doing so, the employer should be sure to ask all employees to disclose the same travel information consistent with business necessity and Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees and applicants for employment on the bases of, among other categories, race, color, religion, national origin, sex and sexual orientation. The important thing here is that no employee is singled out based on their travel destination, which could be perceived as discrimination based on that employee’s membership in a protected class, including national origin.
Second, an employer can educate its employees about the risks associated with the personal travel. While contracting COVID-19 is certainly one of the most serious health risks currently associated with travel, employees also risk being stranded in a foreign country due to travel restrictions or being quarantined upon their return. Government-imposed travel restrictions change frequently as new outbreaks and hot spots appear in different regions around the globe. Employers should ensure their employees are aware of the COVID-19 Travel Recommendations by Country, which can found on the Centers for Disease Control and Prevention (CDC) homepage. Employees should be aware that the CDC currently mandates that individuals returning to the U.S. from any international travel self-quarantine for 14 days. In addition, multiple states have issued orders either recommending or requiring that individuals self-quarantine after returning from certain other states. Employers need to be aware that employees who are required to quarantine upon return from vacation may be eligible for leave under the Families First Coronavirus Response Act, if covered, or state or local leave laws.
Third, an employer should monitor employees upon their return for signs and symptoms of COVID-19. Employers should also encourage employees who suspect possible exposure to self-monitor for signs and symptoms of COVID-19, and require them to report when they are sick or experiencing symptoms. If an employer reasonably believes an employee returning from a vacation is symptomatic or infected, the employer may require that the employee self-quarantine at home for 14 days. Employers can also require an employee who has traveled to a high-risk area to provide a doctor’s note certifying their fitness to return to work, provided employers are enforcing this policy equally among all employees returning from high-risk areas to avoid the appearance of discrimination.
Even though the decision of whether to restrict employee travel in light of the COVID-19 pandemic is not clear cut, it should be made after consideration of applicable local, state and federal laws. This return-to-work checklist provides helpful guidance for the various issues employers should consider before re-opening. Most importantly, employers have the ability to ensure that all employees are protected from the risk posed by the travel plans of other employees. Consistent with this, employers should implement health and safety measures recommended by public health officials and ensure that those protocols are applied equally to employees returning from personal travel.
The COVID-19 pandemic has created a myriad of new challenges to workplace safety. While it is impossible to eliminate all risk of COVID-19 entering a workspace, following the above guidelines will minimize the risk associated with employee travel. Employers should consult with their employment counsel before imposing the above guidelines or travel restrictions on their employees.