The 2019 novel coronavirus (COVID-19) is presenting challenging issues for employers as many employees and their families travel for summer vacations. Despite the risks, many employees are not canceling their travel plans. Notably, the situation is and will remain fluid. The following frequently asked questions (FAQ) may assist employers in addressing issues resulting from employee personal travel:
Can employers ask employees about their personal travel history and future plans to travel?
Yes, but employers should ensure that all employees are being asked to disclose this information and that the information requested is consistent and in line with business necessity. The key is training your human resources personnel as well as supervisors and managers in order to avoid issues with Title VII and national origin or race discrimination claims.
Can employers prohibit employees from traveling to non-restricted areas for personal reasons?
No, for the simple reason that it is an otherwise legal activity. That said, CDC guidance and recommendations are useful and should be regularly reviewed by human resources personnel. According to the CDC, no geographical area is free from outbreak, but not all areas of outbreak are restricted for travel. Employers are free to urge employees to use common sense when traveling.
Employers can take the following actions:
- educate employees on the current risks of travel, which include being potentially stranded due to government travel restrictions and/or subject to a federally mandated quarantine when the employee returns from travel;
- to the extent the employee has the ability to work remotely, require the employee to travel with equipment (laptop, portable internet connection, etc.) that would allow the employee to work if he/she is stranded due to travel bans being imposed;
- inform the employee of interim changes to company policies or practices that may impact their ability to return to work, and how those policies might apply in the event that an employee is stranded or quarantined;
- monitor those employees returning from such travel for signs of illness.
Can employers restrict personal travel to or through Level 2 and Level 3 countries?
Although an employer has limited ability to restrict an employee’s personal travel, an employer can require an employee who has traveled from or through a Level 2 or 3 country (as designated by the CDC) to refrain from coming to work and self-quarantine for an appropriate period of time, which is usually 14 days per CDC guidance.
Can an employer require employees to stay home from work following travel on a cruise ship or riverboat?
Yes. The CDC has designated cruise ship and riverboat travel as a Level 3 risk. Employers can require employees who have been traveling by cruise ship or riverboat to self-quarantine for an appropriate period of time, which is usually 14 days per CDC guidance.
Can employers restrict personal travel to a state or an area within a state that is designated as a “hot spot”?
No. However, an employer can require an employee who has traveled to a designated “hot spot” to self-quarantine for an appropriate period of time, which is usually 14 days per CDC guidance.
Designated “hot spots” change periodically. Employers should regularly review the CDC’s list of designated “hot spots”. Employees should be urged to use common sense when traveling to designated “hot spots”.
Can employers require employees who have traveled to high risk areas to undergo a temperature check or otherwise get checked by a doctor (i.e., get tested) prior to returning to the workplace?
Under current pandemic circumstances, yes. Unlike media reports of businesses taking temperatures of customers visiting their establishment, taking employee temperatures is a different situation. The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries and requiring medical examinations UNLESS:
- The employer can show that the inquiry or exam is job-related and consistent with business necessity;
- The employer has a reasonable belief that the employee poses a “direct threat” to his/her own health or safety, or the health or safety of others that cannot be eliminated or reduced by reasonable accommodation.
Both the CDC and the Equal Employment Opportunity Commission (EEOC) have issued guidance that a global pandemic such as COVID-19 rises to the level of a “direct threat” and indicated that employers taking temperatures during the pandemic is not a violation of the ADA.
If an employee gets tested, the employer has no obligation to pay for the test outside of the employer’s medical coverage, if any.
What if an employee has a family member(s) who travels to a high risk area?
Employers can request that employees report any family member(s) with whom they have close contact who have traveled to high-risk areas, in order to determine if the exposure has resulted in the employee posing a direct threat to the health and safety of others in the workplace. The CDC advises that employees who are well, but who have family member(s) that develop the illness, notify human resources personnel and/or their supervisor and refer to CDC guidance on how to conduct a risk assessment of potential exposure.
If an employee is required to self-quarantine following personal travel, must the employee be paid during this time?
If the employee is able to telework (work remotely from home) while in self-quarantine, they must work and should be paid.
If the employee is not able to telework while in self-quarantine, two issues should be considered in determining whether the period of self-quarantine (or part of the period of self-quarantine) is paid time off. First, the employer must determine if the employee is eligible for Emergency Paid Sick Leave pursuant to the Families First Coronavirus Response Act (FFCRA). If the employee qualifies for Emergency Paid Sick Leave under FFCRA for the period of self-quarantine, the employee is entitled to 80 hours of leave at 100% of their regular rate of pay up to $511 daily ($5,111 total). If the employee is not entitled to Emergency Paid Sick Leave, the employee would be entitled to use paid vacation or other PTO time, if any, to cover the period (or part of the period) of the self-quarantine.
Is COVID-19 an FMLA-covered “serious health condition”?
Not necessarily. If COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave. For example, an employee who is required to self-quarantine but is asymptomatic may not be FMLA-qualifying leave.
Note: the CDC’s website: “Coronavirus Disease 2019 Information for Travel” should be regularly consulted for up-to-date travel notices concerning risks.