COVID-19: "Where I Spent My Summer Vacation" – This Year’s Summer Reading for Employers

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COVID-19 is the pandemic that keeps on giving. As the Fourth of July marks the start of the summer vacation season, more and more employees are going to be taking time off. State quarantine orders - until now perhaps only of passing interest - suddenly loom large. The reason is this: employees vacationing in states other than the one in which they work may trigger a mandatory 14-day state quarantine upon their return. What can you as an employer do? Here are some thoughts on how you can get control over these situations.

First, understand precisely what the order in effect in your state actually says. In Pierce Atwood’s jurisdictions, it looks like this:

  • Maine – 14-day self-quarantine mandatory except for essential workers, unless 1) employee can produce a negative PCR (virus, not antibody) test not older than 72 hours, or 2) travel was only to NH or VT
  • New Hampshire – Voluntary self-quarantine
  • Massachusetts – 14-day self-quarantine required except for essential workers and travelers from the other New England states, New York, and New Jersey
  • Rhode Island – 14-day self-quarantine if returning from a state that has a test-positive rate greater than 5%, unless the employee can produce a negative PCR (virus, not antibody) test not older than 72 hours
  • District of Columbia – 14-day self-quarantine should be followed upon return from travel to international locations or U.S. areas with widespread community transmission

Please note that these orders are subject to change, and that with the escalation in positive tests in multiple states, it would not be surprising to see states in New England become more, rather than less, restrictive on incoming travelers on a state-by-state basis.

Next, consider what impact a 14-day self-quarantine would have on your business operations. This is a case-by-case consideration. For employees who can work from home 100% of the time, there is likely no meaningful risk of disruption. But for production and health care workers, the need to quarantine creates yet another COVID-19-related headache: how will you replace the production of these employees? For retail and hospitality workers, losing them just as your business is starting to gear up again could be a serious or even fatal blow to your business.

Also consider what you can do to get out in front of this potential problem. Can you require your employees to disclose whether they intend to leave your state, and if so what their destination(s) will be? Can you refuse to allow vacation time for travel to quarantine-generating locations that may double or triple actual time away from work? Can you refuse to pay for time off you might otherwise have to treat as paid leave because it is mandated by a state quarantine order, because the quarantine was triggered by voluntary behavior?

No matter how you decide to address these questions, we recommend clear communications with your employees about both of your reasonable expectations concerning vacations. Let your employees know that if they plan to travel out of state for a vacation, you need to discuss with them the implications of doing so - both for them and for you. Explain clearly what the consequences will be if their travel requires them to self-quarantine when they return – if they cannot work from home, do they get paid leave, or do they face the prospect of unpaid leave, or even termination?

An unfortunate side effect of alerting employees to these issues is that they may decide not to be forthcoming about their plans, because they won’t want to self-quarantine for no pay, or risk their jobs. However, that is a risk we recommend taking – “Don’t ask, don’t tell” is the wrong approach to protecting the rest of your workforce, your customers, and the public. Your employee screening may be put to the test by employees who do not reveal out of state travel, so make sure your employees are complying with it. And of course in Maine, you may ask for a negative PCR test result to allow returning vacationers to return to work much sooner than 14 days.

Finally, there is no clear answer to the question of whether someone returning from a quarantine-triggering vacation is entitled to paid leave under the FFCRA, because the need for leave is created by a quarantine order. Employers could refuse to provide paid leave, or require the use of any accrued vacation time, if the need for quarantine is knowingly self-induced by the employee for entirely voluntary reasons. However, this is a risky approach that we think employers should probably avoid; the FFCRA does not contain language that would support this position. If an employee returning from out-of-state travel is subject to a required quarantine in your state, we think it would be better simply to ban your employees from all out-of-state travel for any reason, based on COVID-19 risk. That way, any employee who travels out of state would be violating your policy and would be subject to a two-week unpaid suspension, regardless of the reason for travel.

Can testing solve this problem? In Maine, the governor has issued an order allowing certification of a negative test result as an alternative to the 14-day quarantine for out-of-state visitors. A negative test result could certainly obviate the need for unpaid leave (If on-demand testing is not available, the no-travel policy could contain an exception for pre-approved travel for an essential business purpose or family emergency). However, this approach makes two assumptions that are not necessarily true: first, that on-demand testing is widely available, and second, that the available testing is accurate enough to justify relying on it. Employers should make sure that they can reasonably rely on the availability and accuracy of testing before making it the foundation of a policy on employees returning from travel.

We recognize that no employer wants to restrict off-duty conduct in this manner; indeed, some states do not permit such restrictions. But given that we are in extraordinary times, it is reasonable to balance the needs of your business with the needs of your employees in this way, on a temporary basis, until the need to do so is eliminated with the arrival of a vaccine.

Ultimately, to earn an A on your “summer vacation” essay this year, you will need to consider all of these issues, make decisions that fit your workplace, and communicate with exceptional clarity your expectations to your workforce.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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