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. Employer attempts to restrict where employees go on vacation to prevent their exposure to COVID-19 are limited by laws and employee-relations considerations. However, pre-travel inquiries and advisories are allowed, so long as they are applied neutrally and uniformly.
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 to 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. Can an employer inquire about an employee’s personal travel plans?
Yes – provided you inquire equally for all employees and the inquiry is consistent with business necessity.
3. Can an employer prohibit or restrict an employee’s personal travel?
Some states, such as California, prohibit employers from interfering with employees’ lawful off-duty conduct. Though these laws are generally interpreted to apply to lawful off-duty conduct involving political activity and may not necessarily restrict action based on conduct that harms or has the potential to harm the employer or the workplace, the language of these laws is often fairly broadly worded. It is possible a court could apply these protections to other lawful off-duty conduct, such as engaging in personal travel. At the same time, employers are required under OSHA’s general duty clause and other applicable laws to ensure a safe workplace. To balance these interests, you may require employees to disclose any travel plans or recent travel and remind employees of CDC recommendations regarding travel and any mandatory state or local self-isolation or quarantine periods post-travel.
4. Are there different considerations if an employee travels domestically or internationally?
Not directly. According to the CDC, any travel, whether domestic or international, can increase the chances of contracting and spreading COVID-19. Prior to traveling, the CDC recommends individuals check travel recommendations for their destination and the number of cases in the state to which they are traveling.
For employers, it is important to educate employees on the risks of personal travel and emphasize that maintaining a safe workplace and safe community requires participation from all involved. Provide resources for employees to inquire about travel recommendations, in addition to maintaining a travel policy that can be enforced consistently.
You will also want to check specific State or local orders for any travel advisories that may include quarantine requirements upon an individual’s return.
5. If an employee travels out of state, can an employer ask them to quarantine or work remotely when they come back?
Probably yes. If mandated by applicable law, you may require employees to self-quarantine or isolate. Certain states have implemented specific travel advisories with quarantine requirements or suggestions upon return from travel, please check with the State and local law the employee works in. Employees should be advised to comply with all state and local quarantine orders.
Otherwise, to the extent possible, you should allow employees who have traveled to work remotely for at least 10-14 days or as directed by the CDC or your local health department following their return. If remote work is not available, there may be some risk in requiring employees to self-quarantine or isolate without pay– see question 6.
Employers should also consider adopting travel policies, which may help manage employees’ expectations around traveling during the pandemic.
6. Is an employee who self-isolates or quarantines after travel entitled to FFCRA or other paid leave?
Possibly. If there is a federal, state, or local order mandating self-isolation or quarantine following travel, the employee may be entitled to FFCRA or other paid sick leave. Additionally, if the employee has been advised by a health care provider to self-quarantine, tests positive for COVID-19, or is experiencing symptoms and seeking a medical diagnosis, they may also be entitled to FFCRA or other paid sick leave. If the employee cannot work remotely and is not subject to any of the foregoing, this time may be unpaid. Exempt employees, however, must be paid their full salary for any week during which they perform work. You may permit employees not entitled to FFCRA or paid sick leave to use any accrued vacation or other paid time off as well.
7. 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. Please be sure to check with State and local orders for any additional guidance or requirements for employer mandatory testing.
8. 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.
9. If an employer requires testing, who pays for the test?
Whether the employer separately has an obligation to pay for all or some portion of the cost of the test will turn-on state or local law. In the absence of a specific federal rule pertaining to COVID-19 testing, the employer’s practices regarding payment for mandatory drug tests may be a useful guide. Nonetheless, even if employees are not covered by an insurance plan, the Americans with Disabilities Act (ADA) guidance that predates the pandemic suggests that employers may be obligated to pay the costs of administering mandated COVID-19 tests in certain circumstances.
The Equal Employment Opportunity Commission’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA states that if an employer requires an employee it reasonably believes will pose a “direct threat” to the health and safety of themselves or others to be examined by a health care professional of the employer’s choice, then the employer must pay all costs associated with the visit.
In a pandemic, certain employees, such as those reporting to work in an area with a high rate of infection, may pose a direct threat. Employers could therefore be required to pay for administering employer-mandated COVID-19 tests. Moreover, travel time and test-taking time might also be compensable under the Fair Labor Standards Act, and if such time is not compensable under federal law, it may be under state law.
Even where health plans and employers are not required to pay for COVID-19 testing, employers might consider paying the costs and it is Guardian HR’s recommendation that Employers do cover the cost of any employer-mandated testing.
10. What if an employer finds out an employee has traveled through a coworker or social media, but the employee failed to notify the company in advance?
It is best to avoid monitoring employee off-duty conduct through social media or workplace gossip. While you have a duty to maintain a safe workplace and should have policies in place to do so, you should stay away from actively monitoring off-duty conduct. However, strategies such as implementing a travel policy and return-to-work questionnaire can help you navigate this situation if it arises (e.g., informed of activity by a coworker, etc.).
11. What if an employee does not truthfully respond to a return-to-work questionnaire or self-certification form?
Employees who violate company policies, including falsifying information on a return-to-work questionnaire or self-certification form, without an excuse may be subject to discipline. It is important that travel policies are clearly communicated to employees in writing and consistently enforced. Prior to issuing any discipline, you should engage in a dialogue with the employee and document the response and any follow-up.
12. What are steps an employer can take to ensure a safe workplace regarding personal travel?
Having clear travel policies and procedures in place that incorporate CDC and applicable federal, state, and local guidelines and/or orders is essential. As noted above, you may require employees to disclose any travel plans or recent travel and remind employees of CDC recommendations regarding travel and any mandatory state or local self-isolation or quarantine periods post-travel. You may also require employees to complete a questionnaire prior to returning to work inquiring about any travel and confirming they do not have a temperature and are symptom-free and/or conduct symptom/temperature checks. Such policies should be clearly communicated to employees in writing and consistently enforced. In addition to travel policies and questionnaires, you should train employees regarding the risks of travel during the pandemic and emphasize that maintaining a safe workplace requires participation from all involved. As guidance on COVID-19 continues to evolve, you should notify employees of any changes to employer policies.
GUARDIAN HR’s AVAILABLE RESOURCES
- Partnership with Trivent Safety Consulting https://guardian-hr.com/safety-services/
- Template COVID-19 Travel Policy (Forms Library Coronavirus >Travel)
- Sample Self-Certifications; (Forms Library Coronavirus > Safety > Positive or Exposed Employee)
- Employee Online Training (COVID:19 Workplace Safety for Employees & COVID:19 Navigating Employee Issues)
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This a constantly evolving area, with new guidance being issued nearly every day. Guardian HR will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. For clients with access to the Forms Library, you will find the ‘CORONAVIRUS’ folder including additional information and guidance.