Wednesday, July 8, 2020

Should You Have a COVID-19 Travel Policy

Normally, an employee’s off-duty travel, or the travelers that they host in their home, are rarely the concern of an employer. These are just not normal times.

As more employees return to the workplace, employers continue to evaluate how to keep them safe by reducing the possible exposure and spread of COVID-19 in the workplace. Without national uniformity on face coverings and businesses reopening, which many attribute to spikes in COVID-19 cases in some states, employers must be increasingly aware of not only what employees do in the workplace, but where they have been and who they have been with outside of work.

Many employers are implementing travel policies which evaluate employee travel on a case by case basis and determine whether an employee’s travel or hosting of travelers increases the risk of exposure to the coronavirus to an unacceptable level. The analysis looks at where the employee traveled to or from where they hosted travelers, the mode of travel (air, bus personal car, etc.), and the risk level for that location, along with the employee's job duties (i.e. can they be socially distanced at work). Depending on the particular facts, the employee may be found to present an unacceptably high risk of exposure and spread of the coronavirus and prohibited from coming to work for the 14-day incubation period. In other instances, an employee can be directed to take extra precautions at work, such as wearing a face covering all the time, or temporary reassignment to ensure social distancing.

Unless the employee actually ends up testing positive or is recommended to quarantine by a medical provider, any time away from work because of personal travel or hosting travelers is without pay unless the employee uses benefit time. If the employee tests positive or is ordered to quarantine by a doctor or health care provider, they are eligible for EPSLA, unless already exhausted.

Some employees and labor unions question the authority of an employer to not only ask about travel and hosting travelers off duty, but to prohibit an employee from reporting to the workplace when they are determined to be at high risk for that reason. Here is the rationale: the employer has the obligation to provide a safe work environment. This is a general OSHA regulation. Additionally, employers have the right to take non-discriminatory precautionary measures to ensure that their operations continue efficiently and without interruption. In this regard, it is much the same as sending an employee home because they are sick, but more precautionary in nature due to the severity of the consequences of the spread of coronavirus. An employee who has traveled or hosted travelers from coronavirus "hot spots" may create an unsafe workplace by coming to the workplace when they are at a higher risk of exposure resulting from travel. The employer has the right to control their workplace and, much like sending an employee home with a bad cold or flu, can prevent an employee from coming to work when they may be at high or higher risk of exposure and spread of the coronavirus.

COVID-19 travel policies are admittedly difficult to enforce because they remain reliant on self-disclosure by employees. Like any other employment rule or policy, they are enforceable through discipline. It helps to ease the minds of employees to inform them that travel or hosting travelers from current “hot spots” does not automatically require employees to stay at home and burn two weeks of their benefit time. It only requires analysis on how to maintain a safe workplace in light of the fact that employees are free to engage in personal travel, but employers maintain the right and duty to ensure a safe workplace.

Finally, it is important to apply the policy in a nondiscriminatory fashion. Employers should rely on current CDC and other public health agency travel guidelines to identify current hot spots rather than speculate on who may be at higher risk of exposure. The goal is always to keep employees working safely and not necessarily to prohibit them from reporting to work.

The labor and employment attorneys at Ancel Glink have assisted many employers with COVID-19 travel policies. For assistance in drafting or enforcing a travel policy for your organization, call the Ancel Glink attorney with whom you usually work or contact Margaret Kostopulos (tel: (312) 604-9106, Keri-Lyn Krafthefer (tel: (312) 604-9126), or Matt DiCianni (tel: (312) 604-9125).