The 2020 holiday season is fast approaching. By one recent estimate, nearly 40% of Americans are planning to travel for the holidays, many to visit with family, friends, and loved ones for the first time since the start of the COVID-19 pandemic. Yet there are some parts of the U.S., especially the mid-west and south, that are currently experiencing significant spikes in the rate of COVID-19 infections. The CDC continues to actively discourage travel during the COVID-19 pandemic because “travel increases your chance of getting and spreading COVID-19.”
All of this has left many employers to ponder whether restricting the personal travel of their employees during the holidays should become a part of their overall COVID-19 workplace safety policies and practices. The questions are many: Should I just ban my employees from personal travel during the pandemic? Can I at least require my employees to disclose their personal travel plans and destinations? What about an employee who returns from personal travel to a COVID-19 hotspot; can I require them to self-quarantine before coming back to work? Are there less restrictive options that will satisfy both my business needs and workplace safety obligations?
Questions such as these make a lot of sense from a risk management standpoint. Consider that the CDC’s guidance has been unequivocal: Travel makes it more likely that an employee will return to work infected with COVID-19. Compliance with workplace safety requirements is of paramount importance. The OSHA General Duty Clause requires employers to maintain a workplace free from hazards that are likely to cause serious injury or death. Virginia employers must also comply with the new, comprehensive Emergency Temporary Standards for COVID-19 workplace safety of the Virginia Department of Labor and Industry (“DOLI”).
On the other hand, employers also will have to weigh these safety compliance requirements against the practical implications and potential downsides of banning or placing restrictions on personal travel by their employees, especially during the holiday season, which could end up creating workforce dissention and have unintended health consequences for workers.
With these important concerns and difficult issues as a backdrop, let’s take a quick look at the legal challenges that COVID-19-related travel poses for employers.
Can I require my employees to disclose where they are planning to travel for the holidays?
Yes, with a few caveats. Remember, you have a legitimate business justification for the ask – to control the potential spread of COVID-19 infections in your workplace. The EEOC reiterated in its most recent COVID-19 guidance that asking your employees to disclose their travel destinations is not a disability-related inquiry subject to legal scrutiny under the Americans with Disabilities Act. However, employers should remember to ask personal travel-related questions of all of their workers to avoid any inference of targeting certain employees or groups of employees based on personal characteristics of those employees that are protected by federal, state and local anti-discrimination laws.
Additionally, OSHA requires employers to take appropriate steps to protect other workers from exposure to COVID-19 in the workplace. Those steps could include notifying other workers to monitor themselves for signs/symptoms of COVID-19. The CDC recommends employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID-19 in the workplace, while maintaining confidentiality with medical information as required by the Americans with Disabilities Act and some state and local laws. Requiring your employees to disclose their travel destinations may help employers to identify risks that require action under OSHA and CDC guidelines.
Virginia employers have an additional reason to consider requiring employee disclosure of their personal travel plans. The DOLI’s COVID-19 workplace safety regulations are keyed to the level of risk presented by employment circumstances, which is the employer’s duty to assess. Because the potential for COVID-19 workplace infections could be greater for an employee who has just returned from travel to a COVID-19 hotspot, Virginia employers may be required under the DOLI workplace safety regulations to keep the employee out of the workplace or implement additional COVID-19 safeguards to account for the greater risk of potential infection.
Can I just ban employees from personal travel altogether during the upcoming holidays?
Yes, at least for Virginia employers. While a handful of states – California and New York, among them – have laws restricting employer interference with employee out-of-work activities, like personal travel, Virginia does not. Therefore, a Virginia employer would be within its rights to impose a ban on the personal travel of employees and to discipline or discharge at-will employees who violate the employer’s personal travel ban, with a few exceptions. For one, an employer could potentially interfere with an eligible employee’s leave rights under the Family and Medical Leave Act, if a personal travel ban would prevent the employee from traveling to provide care to a family member with a serious health condition. Employers also should apply any personal travel ban policy uniformly to avoid any inference of targeting certain employees or groups of employees based on personal characteristics of those employees that are protected by federal, state, and local anti-discrimination laws.
Can I require my employees to self-quarantine or stay away from work after they return from personal travel?
Yes, in most circumstances. In the current pandemic, travel to locations considered to be COVID-19 hotspots makes it far more likely that your employee will be exposed to COVID-19, according to the CDC, and on return may pose an elevated risk of spreading the virus to others in the workplace for up to 14 days after exposure to the virus. As we have learned all too well since March 2020, an employee can be contagious without exhibiting symptoms and unknowingly spread the virus to others. Virginia employers should also look to the DOLI’s COVID-19 workplace safety regulations for guidance. Factors identified by the DOLI that are to be considered when assessing workplace safety risks include: the potential for exposure to the airborne transmission of COVID-19; the level of “community spread” of COVID-19 in a particular geographic area; and occupational contact inside six feet with other employees, who may be infected with COVID-19, but are asymptomatic and not known or suspected to be infected with COVID-19. An employee who has just returned from personal travel to a COVID-19 hotspot presents a heightened risk of infection to other employees and could be required to self-quarantine until such time as the employee’s heightened risk of COVID-19 has abated.
Conversely, to permit the employee to return to work after such travel may arguably obligate the employer to undertake additional workplace risk assessments to account for the increased likelihood of the employee’s exposure to COVID-19 infection, and implement commensurate workplace administrative, engineering, and work practice safeguards. And Virginia employers who decide to require an employee to self-quarantine after returning from personal travel, must also permit the employee to telework where technologically and economically feasible, as defined by the DOLI COVID-19 workplace safety regulations.
With all these competing interests, what is the takeaway for employers?
In most circumstances, employers can restrict or ban personal travel for employees during the upcoming holiday season and into 2021, as the pandemic continues. Virginia employers may feel compelled to implement and employee travel ban under DOLI’s COVID-19 workplace safety regulations, although it is still too early to tell how vigorously the Commonwealth will enforce these requirements. However, employers may also need to be mindful that banning employees from personal travel may have some unintended negative consequences. Employers should not lose sight of the fact that they provide employees with vacation time for several good reasons. Employees are likely to be happier, healthier, and, therefore, more productive when they have personal time away from work. A decrease in employee trust and a corresponding increase in employee turnover may be other adverse side-effects of a personal travel ban.
If you have questions or need any assistance, please contact Doug Taylor at (703) 525-4000 or firstname.lastname@example.org.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.