By Kevin Harlow and Maria Garrett

The holiday season marks a time each year when many of us travel to visit family and friends. As with everything else in 2020, the holidays will likely look a little different this year due to COVID-19. With a third wave of infections sweeping the country, several cities and states have issued new shelter-in-place orders and travel restrictions, hoping that most people hunker in at home and forego their usual holiday travel plans. But, as we saw during Thanksgiving, many have been unable to resist holiday travel. According to the Transportation Security Administration (TSA), the days around Thanksgiving were the busiest travel days this year since the middle of March, surpassing 900,000 travelers for seven consecutive days. Although travel has steadily declined since Thanksgiving, some employees will again plan on traveling as the December holidays approach.

This raises questions for companies regarding whether they can—or should—restrict employees’ personal travel and what other steps companies may take to ensure a safe workplace during the pandemic. Like with everything else COVID-related, these issues are constantly evolving and may hinge on specific local regulations. Below, we address key issues for employers to consider.

Can employers restrict employees’ personal travel?

The answer is not clear cut. OSHA’s general duty clause and other applicable laws require employers to ensure a safe workplace. Further, employers generally have discretion to institute policies to protect the health and safety of their employees.  Accordingly, some employers have established policies that restrict employees from traveling to “hot spots.”  Such policies, however, may be difficult to monitor and enforce, raise objections from employees, or raise legal concerns.

For example, some states, such as California, Colorado, and New York, prohibit employers from taking adverse action against employees based on certain lawful, off-duty conduct. For example, the New York statute prohibits employers from firing an employee because of the “individual’s legal recreational activities outside of work hours, off of the employer’s premises and without the use of the employer’s equipment or other property.” N.Y. Labor Law § 201-D(2)(c).  On the other hand, the New York statute also expressly provides that an employer will not be in violation where the employer takes action “based on the belief … that [] the employer’s actions were required by statute, regulation, ordinance or other governmental mandate.”  N.Y. Labor Law § 201-D(4).  Similarly, depending on the jurisdiction, the employee’s travel may be in violation of state or local regulations, and thus would not be “lawful” off-duty conduct.  Still, employers operating in states with such statutes should be cognizant of the issue and seek jurisdiction-specific legal guidance.  Employers should also ensure that any travel restrictions are consistently applied and enforced.

To balance the employer’s interest in providing a safe workplace and employees’ rights to engage in legal recreational activities, employers may want to consider some of the less onerous options discussed below.

Can employers inquire into an employee’s recent travel or upcoming travel plans?

Yes. The EEOC has issued guidance confirming that questions about where an employee travelled are not disability-related inquiries. According to the EEOC, “If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.”

As with any other employment policies, employers who choose to inquire about employees’ travel plans are strongly encouraged to apply their policies uniformly and require all similarly situated employees to disclose the same travel information.  In addition, given the potential for other legal concerns to arise, we encourage employers to confirm that there is a legitimate business purpose for the inquiry.  For example, inquiring into a fully remote employee’s travel plans may not be necessary to preserve a safe workplace when there is no likelihood that the employee would interact with other employees or customers.

Can employers require traveling employees to self-quarantine prior to returning to the workplace?

Yes. In addition to employers’ general duty to maintain a safe working environment, many states and municipalities have implemented requirements for individuals traveling into the state or municipality, which generally include residents returning home from out-of-state travel. These regulations often recommend or require incoming travelers to quarantine if returning from certain locations deemed high-risk by the issuing governmental entity. For example, as we discussed here, a directive from Santa Clara County in California requires anyone who travels into Santa Clara from a point of origin greater than 150 miles from the county’s borders to quarantine for 14 days upon arrival.  Some of these local regulations, such as the District of Columbia’s, expressly permit employers to enforce measures “such as mandatory quarantine for travelers, as deemed necessary.”  Nevertheless, in light of the constantly evolving landscape, employers should seek jurisdiction-specific guidance prior to implementing such a measure and to ensure compliance with any applicable wage & hour requirements for quarantined employees.

Can employers require traveling employees to submit to COVID-19 testing prior to returning to the workplace?

Yes. According to OSHA guidance, neither the OSH Act nor OSHA standards prohibit employer testing for COVID-19. The EEOC has likewise stated that COVID-19 viral tests are permissible under the ADA, as long as testing meets the ADA’s “business necessity” standard. Medical testing is consistent with “business necessity” when an employer has a reasonable belief, based on objective evidence, that a medical condition (here, COVID-19) will pose a threat due to other persons due to the medical condition.  The testing must be conducted in a non-retaliatory and non‑discriminatory manner. Antibody testing, however, is not permitted.

We note, however, that as discussed here, the California Division of Occupational Safety and Health has issued emergency temporary standards to protect the workplace from COVID-19 hazards.  Under these standards, employees who test positive or are exposed to COVID-19 are required to meet specific return-to-work criteria (namely quarantine time), but their return to work cannot be conditioned on obtaining a negative test (because a test may return a positive result after the employee is no longer infectious).  Presumably the same rationale would apply to returning travelers – the employer may test and take appropriate actions to protect the workplace (such as a quarantine period), but may not condition the traveler’s return to work on a obtaining a negative test result.

Similarly, both OSHA and the EEOC have cautioned employers against relying on negative test results and advise that employers should not presume individuals who test negative present no hazards to the workplace.  Thus, even where a returning traveler tests negative, employers should consider implementing infection control practices.

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While there is no one-size-fits all approach to employee holiday travel restrictions and rules, employers can, and should, consider implementing health and safety measure to lower the risk of COVID-19 entering the workplace.  Employers are encouraged to consult with knowledgeable counsel to obtain jurisdiction-specific advice given the constantly evolving legal landscape and complex interplay of federal, state, and local regulations.  In addition, employers can expect that many of these issues will need to be revisited as the COVID-19 vaccine is deployed and policies implemented during the height of the pandemic are reevaluated.  The DLA Piper Employment group has assisted many employers across the country in navigating these issues and implementing effective and practical solutions.

For advice on these and other employment issues raised by the COVID-19 pandemic, please contact a member of the DLA Piper Employment group or your DLA Piper relationship attorney.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.