Have You Thought About … Implications of Employee Travel During the Pandemic?

Have You Thought About … Implications of Employee Travel During the Pandemic?

Nov 19, 2020

Client Alert

Brownstein Client Alert, November 19, 2020

There are now nearly 60 million confirmed cases of COVID-19 worldwide, and over 1 million deaths, including a quarter of a million in the United States. Federal, state and local authorities are recommending that travelers avoid nonessential travel, and some jurisdictions have even imposed mandatory testing and quarantine requirements on out-of-state travelers. While most companies have drastically curtailed all but the most essential business travel, how does employees’ personal travel—expected to increase significantly during the impending holidays—impact employers?

Employer Restrictions on Employee Conduct

Many jurisdictions have protections for lawful off-duty conduct, which would generally include personal travel. Such jurisdictions include California, Colorado and New York, among many others. Notably, though, employees who flout mandatory requirements, such as mask protocols, limitations on the size of gatherings or quarantine restrictions, would not be engaged in lawful conduct, and employers generally can take disciplinary action as deemed appropriate to protect workplace safety. Most recently, this arose in the context of Halloween celebrants posting photos of themselves on social media attending large parties and failing to observe safety measures, all in violation of local restrictions; such conduct is not protected.

Employer Safety Protocols

Balanced against the right of employees to engage in lawful off-duty conduct is the employer’s obligation to provide a safe workplace and the general duty not to expose the public to hazards. While an employer generally cannot prohibit employees from engaging in personal travel, it can —and should—impose appropriate protocols for employees who do so, and advise employees in advance of the potential ramifications. Such protocols should be developed in accordance with guidance from the Centers for Disease Control and Prevention (CDC) and the World Health Organization, as well as guidelines and requirements issued by state and local governments and public health agencies, updating the protocols as circumstances change.

Employer protocols may include post-travel testing for COVID-19, imposing a self-quarantine period and requiring remote work. Employers should promulgate and disseminate a clear policy outlining the protocols. Companies also should request that employees who engage in personal travel notify a designated representative of their travel plans in advance, including destination(s) and timing. Employees should be instructed to notify the company if any unforeseen events occur, such as quarantine, illness or suspected exposure to COVID-19 while traveling.

Failing to implement appropriate safety policies can have drastic consequences. Allowing an infected employee to return to the workplace (before or after symptoms manifest) can cause an outbreak and endangers employees, visitors and the general public. Individuals who believe a company caused them to be exposed to COVID-19 may assert legal claims, including workers’ compensation claims by employees and lawsuits for negligence and similar claims by third parties. In addition, negative press, unwanted attention from governmental agencies and damage to the company’s goodwill and reputation can result from employees contracting COVID-19, even where the initial exposure may not have been work-related.

State and Local Requirements and Guidance

Many jurisdictions are implementing—and regularly modifying—mandates and guidance regarding travel. For instance, on Nov. 3, 2020, the New York Department of Health issued its updated “Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel” (“Interim Guidance”). The Interim Guidance provides that, subject to certain limited exceptions, all travelers entering New York from a noncontiguous state, or from a CDC Level 2 or 3 Travel Health Notice country, must self-quarantine for 14 days, in accordance with specified regulations. Alternatively, for individuals who traveled outside of New York for more than 24 hours, they must obtain testing within 72 hours prior to arrival in New York, and, upon arrival in New York, must quarantine according to Department of Health guidelines for a minimum of three days, and on the fourth day may seek a diagnostic test, which, if negative, allows them to exit quarantine.

Paid Leave Considerations

Must quarantine and/or time off for testing be paid? The answer is “it depends.” The primary considerations are whether there is an “order” in place requiring quarantine or testing, a health care provider advised the employee to quarantine, and whether the employee is experiencing symptoms and seeking a diagnosis. Applicable laws, orders and regulations also may specify whether such time must be paid. (And of course, employees performing work during quarantine periods must be properly compensated.)

For instance, under the federal Families First Coronavirus Relief Act (FFCRA), employees of covered employers would be eligible for paid leave if they are subject to federal, state or local quarantine, have been advised by a provider to self-quarantine, or are experiencing coronavirus symptoms and are seeking a medical diagnosis. Asymptomatic employees would not be entitled to paid leave under the FFCRA merely because their employer required them to self-quarantine for a period of time before returning to work after personal travel.

Similarly, absent a federal, state or local order requiring quarantine, Colorado employees who are temporarily sidelined by their employer would not qualify for paid leave under the Colorado Healthy Families and Workplaces Act (HFWA) unless they either had symptoms and were seeking a diagnosis, or they had been advised by a health provider to quarantine or isolate due to a risk of COVID-19.

California’s COVID-19 Supplemental Paid Sick Leave, applicable to large employers and certain other specified businesses, contains criteria similar to the FFCRA and HFWA, but includes an additional entitlement to paid leave where employees are prohibited from working by their employer due to health concerns related to the potential transmission of COVID-19. (See Executive Order N-51-20.) Thus, an employee required by the employer to sit out a quarantine period after personal travel could be entitled to paid leave, subject to the terms of the paid sick leave law. The City of Los Angeles also provides paid sick leave for eligible employees where a public health official or health care provider “requires or recommends” that the employee self-quarantine to prevent the spread of COVID-19; an order or directive is not required.

Conversely, New York’s Interim Guidance “strongly discourages” nonessential travel, including vacationing and visiting family, and expressly states that any New York State resident who voluntarily travels to a noncontiguous state for nonbusiness travel will not be eligible for benefits under New York’s COVID-19 paid sick leave law. Note, though, that the Interim Guidance, while styled as “guidance,” contains “mandatory” requirements; it therefore likely would qualify as a “quarantine order” for purposes of paid leave entitlement under the federal Families First Coronavirus Relief Act (FFCRA).

Takeaways

Employers should approach issues related to employees’ personal travel with caution. Companies are advised to establish policies in conjunction with legal counsel who can assist in carefully crafting policies to ensure compliance with all applicable laws and guidance. Policies should be regularly reviewed and updated to reflect the ever-changing legal landscape. This includes workplace safety protocols and best practices, state and local mandates regarding travel, and the interplay with paid leave laws, which, as outlined above, can involve a complex and nuanced analysis.

This document is intended to provide you with general information regarding updates related to coronavirus. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

Meet The Team

Christine A. Samsel Shareholder T 303.223.1133 csamsel@bhfs.com