Godfrey & Kahn Updates
FAQ: Employee travel during COVID-19March 16, 2020
The 2019 novel coronavirus (COVID-19) arrived in the U.S. right as many employees and their families were gearing up for spring break. Despite the risks, some employees may choose not to cancel these travel plans. Likewise, certain employees may have business-related travel that cannot be postponed or accomplished via electronic communication.
The situation remains fluid. International travel has already been heavily restricted and domestic travel restrictions may soon follow. Godfrey & Kahn’s Labor, Employment & Immigration attorneys continue to monitor those developments and will provide updates.
In the interim, the following are frequently asked questions (FAQ) regarding employee travel and corresponding advice to employers:
Can you ask employees about their personal travel history and future plans to travel?
Yes, but you 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 will be training your human resources team as well as supervisors and managers in order to avoid issues with Title VII and national origin or race discrimination claims.
Can you prohibit employees from traveling to nonrestricted areas for personal reasons?
No, for the simple reason that it is an otherwise legal activity. While according to the U.S. Centers for Disease Control and Prevention’s (CDC’s) travel advisory world map, no geographical area is free from outbreak, but not all areas of outbreak are restricted for travel.
However, employers can take the following actions:
- Educate the employee 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 (e.g. a laptop, portable internet connection, etc.) that would allow the employee to work if he or 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 you require an employee to self-quarantine for the 14-day recommended time period?
It depends. If an employee has traveled to a CDC Warning Level 3 advisory country where the federal government is mandating a 14-day period self-quarantine, the answer is yes. You can and should enforce that quarantine, whether due to personal or business travel.
For an employee who has traveled to high risk areas or otherwise may have been exposed to COVID-19 by circumstance, the answer is also yes.
If an employee has traveled to an area not identified as high risk, the answer is maybe. In this situation, the employee should complete the CDC’s Risk Assessment to determine level of risk to the workplace.
Can you require employees who traveled to high risk areas to undergo a temperature check or otherwise get checked by a doctor prior to returning to work?
It depends. Unlike media reports of businesses taking the temperatures of customers visiting their offices, taking employee temperatures is a completely different situation. The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquires 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 or her own health or safety, or to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation
According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC instructs employers to rely on the assessments of the CDC and public health authorities as objective evidence needed for a disability-related inquiry or medical examination.
If you require an employee to travel for business and the employee returns from travel positive for COVID-19, should it be reported to your workers’ compensation carrier?
Yes. Whether the claim is accepted as an employee injury incurred in the course of employment will be determined by your workers’ compensation insurance carrier.