As state and local public health orders gradually allow businesses to reopen and teleworking employees return to the office, the attention of many employers has shifted from managing a remote workforce to overseeing a safe and compliant return-to-work program. Among the lingering concerns many employers face are the travel bans, warnings, and advisories imposed by various state and federal authorities. In addition, the CDC and other agencies provide recommendations for returning travelers. Employers should pay careful attention to their travel policies as the resumption of business travel coincides with the start of summer vacation season.
At the federal level, the President has restricted entry of non-U.S. residents or citizens who have traveled to certain countries (China, Iran, most of Europe, the United Kingdom, and Ireland). While the President’s mandatory ban does not apply to U.S. citizens and legal residents, the CDC recommends that U.S. travelers who have traveled internationally stay home and monitor their health for 14 days upon their return. As many state and local public health orders either suggest or require that businesses comply with CDC guidance throughout the return-to-work process, employers should consider whether their employees in certain jurisdictions are subject to such guidance. In addition, many jurisdictions limit travel to their countries, including those traveling from the United States. Finally, state governors have issued orders requiring travelers from certain jurisdictions to self-quarantine for a period, usually 14 days, although at least some of these bans have been modified or lifted. Governor Greg Abbott lifted Texas’ requirements for self-quarantine on May 21.
For now, employers should consider strictly limiting business travel to essential trips and, as part of pre-approving any international trip, consider whether the employee may telework on return while away from work. CDC recommends that persons returning from international travel stay home on return for 14 days and monitor their health. Before approving domestic business travel, employers should consider questions like those the CDC recommends for domestic travel, as well as whether the aims of the business trip may be accomplished by videoconferencing or other means.
These and other considerations are likely to guide employer decisions about whether to permit or require work-related travel in the near future. As summer approaches, employers will also face questions arising from those employees who take vacation to travel domestically, particularly as State limitations expire or are lifted. Many states prohibit employers from engaging in behavior alleged to constitute discrimination on the basis of an employee’s lawful off-duty conduct, including personal travel. Whether an employee is required, or merely encouraged, by public health authorities to self-quarantine following travel to a COVID-19 hotspot, employers may question whether they can or should take steps to protect other employees from exposure to the returning traveler.
Therefore, employers may want to consider whether applicable law and any existing travel and PTO policies allow them to counsel employees regarding optional and/or personal travel which may result in a mandated or recommended quarantine or similar restriction. Some relevant considerations include:
- Whether state and local laws permit the employer to restrict lawful off-duty behavior, including personal travel.
- The extent to which existing policies permit the employer to prohibit personal travel that would delay an employee’s return to on-site work or generate disruptive concerns about COVID-19 infection among coworkers, customers, or other stakeholders.
- Federal, state, and local anti-discrimination and anti-retaliation laws, including those that specifically prohibit discrimination because an employee has been exposed to COVID-19.
- Any impact that the Emergency Paid Sick Leave may have on the employee’s return.
- Whether, in consultation with counsel, broader personal travel prohibitions are legally and practically advisable, given the employer’s workforce and the states in which it operates.
Members of Jackson Walker’s COVID-19 task force are available to counsel employers about these and other return-to-work concerns. Additional guidance can be found at JW.com/Coronavirus.
W. Gary Fowler advises and defends his clients on labor and employment matters, with particular interest in executive compensation and contracts, covenants not to compete, and disability law. Gary is recognized for his experience in the Americans with Disabilities Act and for his knowledge of covenants not to compete, which are particularly complex under Texas law. A Co-Chair of Jackson Walker’s Labor & Employment group, Gary is Board Certified in Labor and Employment Law and frequently speaks on non-competition issues and employment law.
Brad Nitschke is a partner in Jackson Walker’s Trial and Investigations & White Collar Defense practices. In addition to representing business and healthcare clients in litigation from demand through trial, Brad has particular experience in investigations and crisis response involving allegations of sexual misconduct, financial impropriety, and health care fraud and abuse.
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Please note: This article and any resources presented on the Jackson Walker Coronavirus microsite do not constitute legal or medical advice.