As the holidays approach, many businesses have employees who travel or attend large family gatherings. Employers who have reopened their doors to working in-person will face questions about how to safely return to work after potential exposure during the holidays. Here are a few likely questions and guidance for employers to help control the spread of COVID-19.

1. Can employers monitor where employees travel?

Yes. According the Equal Employment Opportunity Center (“EEOC”), if the CDC or state or local public health officials recommend that people traveling to specific locations remain at home for a certain period of time, employers may ask whether employees have returned from these locations, even if such travel was personal and even prior to an employee exhibiting symptoms of COVID-19.

2. If an employee travels out of state, can an employer ask them to quarantine or work remotely when they come back?

Probably yes, but it depends on where the employee traveled. Employees should be advised to comply with all state and local quarantine orders. For Maryland employers, on November 10, 2020, the Maryland Department of Health recommended that “[a]ny Marylander who travels to a state with a COVID-19 test positivity rate above 10% or with a case rate over 20 per 100,000 in the past 7 days should get tested and self-quarantine at home until the test result is received.” According to the guidance, the District of Columbia, the Commonwealth of Virginia, the Commonwealth of Pennsylvania, and the states of Delaware and West Virginia are exempt from the quarantine and testing recommendation.

On November 6, Washington, DC also updated its guidance for travelers. DC residents traveling to a state besides Maryland or Virginia must either:

• Limit daily activities for 14 days upon returning.
  OR
• Limit daily activities and get tested for COVID-19 within 3-5 days after returning to DC.

DC guidance specifically states that employers may also enforce measures “such as mandatory quarantine for travelers, as deemed necessary.”

To date, Virginia has not issued quarantine recommendations in relation to travel, but their general guidance on travel can be found here.

If remote work is possible, employees who have traveled to a state on one of the lists above should ideally be allowed to work remotely for at least 14 days. Employers should also consider adopting travel policies, which may help manage their employees’ expectations around traveling during the pandemic.

3. Can an employer administer mandatory testing to employees after the Holidays?

Yes. Because COVID-19 poses a direct threat to the health of others, administering COVID-19 testing is “job related and consistent with business necessity,” as required under the Americans with Disabilities Act. According to the EEOC, an employer may administer COVID-19 testing to employees “before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.”

Employers should ensure that the tests are considered accurate and reliable and not administered in a discriminatory fashion. Employers should also remember that a negative test does not guarantee that the employee does not have or will not develop the virus later.

4. Conversely, if an employee reports experiencing symptoms of COVID-19, can employers impose mandatory testing in order to verify the purported illness and the need for leave?

While it may be legal, the CDC discourages this requirement from a public health standpoint. According to the CDC, “employers should not require sick employees to provide a COVID-19 test or a healthcare provider’s note to validate their illness, qualif[ication] for leave, or return to work.” In other words, guidance has made it clear, as described above, that the best use of testing is to prevent sick people from coming into work and spreading the virus, rather than as a means to verify the need for leave.

Employers should also remember, however, that if an employee is seeking to take leave under the Families First Coronavirus Response Act, that employee must be either under a health care provider’s order to self-quarantine and/or experiencing COVID-19 symptoms and seeking a medical diagnosis – simply experiencing symptoms is not sufficient to qualify for FFCRA leave.

Because of the ever-changing guidance from the EEOC, the CDC, and state and local public health officials, employers are encouraged to consult with counsel prior to making decisions about employee travel expectations and policies.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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