The Centers for Disease Control (CDC) recently announced that travelers do not have to self-quarantine after traveling from another state. However, state governments are still mandating that visitors from certain states will be required to self-quarantine upon arrival.
As we emerge from the pandemic, travel is going to be a part of our plans. And that includes business travel. I wanted to write about it and give you some food for thought. There are some scenarios that I could easily see happening.
So, I reached out to my friend and attorney Carrie Cherveny to see if she would offer us some insights. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies that ensure compliance and further overall organization goals, including risk mitigation when it comes to various insurances such as health and welfare programs and employment practices liability.
Carrie has helped us before with COVID-19 information. Her comments on employer communications is worth a read. Please don’t forget that Carrie’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
For this article, I asked Carrie to comment on four different travel-related scenarios that I could see happening in the workplace. Of course, we know these scenarios are never as clear as I’ve outlined. There’s always some mitigating factor. But I think it’s a good place for us to have a high-level discussion about COVID-related communication, so employers and employees start thinking about it.
Carrie, before we dive into the scenarios. Is there any HR information we need to keep top of mind?
[Cherveny] Yes, let’s start with some foundational and relevant legal obligations and limitations. The Americans with Disabilities Act (ADA) regulates the medical information that an employer may seek from an employee. The scope of an employer’s allowable access to employee medical information is largely dependent on the phase of the employment relationship:
- Before a conditional offer of employment: The ADA prohibits employers from making disability-related inquiries and conducting medical examinations of applicants before a conditional offer of employment is made.
- After a conditional offer of employment, but before an individual begins working: The ADA permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations.
- During employment: The ADA prohibits employee disability-related inquiries or medical examinations unlessthey arejob-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.
- This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.“
Similarly, the Genetic Information Nondiscrimination Act (GINA) prohibits medical inquiries regarding an employee’s family member.
Additionally, employers are legally required to provide a safe working environment for employees. Specifically, the Occupational Safety and Health Act (OSHA) General Duty Clause requires that each employer shall: A) Furnish to each employee, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; and B) Comply with occupational safety and health standards promulgated under the Act. Each employer must comply with occupational safety and health standards pursuant to the General Duty Clause which are applicable to the employee’s own actions and conduct.
It’s against this backdrop that we can proceed with the scenarios.
While the states will differ for every reader, let’s use me as an example. I live in Florida. But according to the State of New York’s COVID-19 Travel website, if I want to visit New York, then I must quarantine for 14 days. So, for Scenario #1: If I decide to go to New York on vacation and I’m planning to be gone for three weeks, so the quarantine issue in New York isn’t a problem. Do I need to tell my employer that I’m going to New York?
[Cherveny] An employer’s employee-related inquiries are primarily limited by the ADA and GINA (as described above). This means that there are not any federal laws that prohibit an employer from asking its employees about their travel. Therefore, the employee’s ‘obligation’ to tell their employer about their travel, and any other activities that may be considered at high-risk for exposure is largely driven by the employer’s policies. Employers may ask employees to self-report regarding travel and other potential COVID-exposure activities.
Arguably, the employer’s obligation to provide a safe working environment would necessitate its inquiries into an employee’s activities in response to the direct threat of COVID-19 community spread. For example, the CDC recommends that employers conduct daily COVID-19 employee symptom screening. It may be prudent for an employer to include questions regarding travel and other potential exposure-activity.
Let’s add a layer of challenge to the second scenario. In Scenario #2: What if Florida were to require travelers from the New York – New Jersey – Connecticut area to quarantine. Now, do I have to tell my employer that I went to New York? And is my employer required to provide any type of accommodation since it was vacation (and not work-related)?
[Cherveny] Let’s start with the state directive. The state’s requirement to self-quarantine after travel to a hot-spot (such as NY/NJ/CT) would require the employee to remain at home for 14-days after travel. State quarantine directives rarely require the employee to specifically report their travel to the employer. However, the practical reality is that the employee will not be able to go to work and will have to offer an explanation to the employer. Likewise, the employer may (and likely should) establish employee obligations to report travel to hotspots through their own policies and processes.
An employer’s obligation to provide a reasonable accommodation to an employee is triggered by an ADA qualifying medical condition. Here, we don’t have an employee requiring an accommodation to perform their essential functions of the job because of a medical condition. Instead, the employee is required to remain in quarantine because of a government order or recommendation. Therefore, instead of a reasonable accommodation under the ADA, the employee may be eligible for wage replacement benefits under the Emergency Sick Leave Act. (also known as the Families First Coronavirus Response Act or FFCRA). The employee’s eligibility is largely dependent on the exact wording of the state’s quarantine directive.
The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Generally, the Act provides that employees of covered employers with up to 80 hours of paid sick leave at the employee’s regular rate of pay up to $511 each day and $5,110 in the aggregate (over a 2-week period). The employee is eligible for these benefits if they are unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider) (among other qualified reasons). A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
For Scenario #3 I’d like to make one little change to the second scenario. I’m still traveling to New York and returning to Florida, but my trip is due to a sick family member (not vacation). Does that change anything – like does the Family and Medical Leave Act (FMLA) or FFCRA apply?
[Cherveny] Here’s the good lawyer answer – ‘it depends’. With respect to the good-old-fashioned FMLA for the serious health condition of a family member: do you work for an employer with 50 or more employees in a 50-mile radius? Have you been employed for 12 months and at least 1,250 hours in the 12-month prior to the FMLA? If yes to all of the above, the next question is with respect to the family member’s condition. The employer will likely provide you with a Certificate of Healthcare Provider for Employee Family Member’s Serious Health Condition. Once the employer receives the completed certificate of health care provider it will be able to determine whether you are eligible for FMLA. ‘Traditional’ FMLA provides up to 12-weeks of job and health insurance protections but it is an unpaid program.
Next, let’s look at the FFCRA. Do you work for an employer with less than 500 employees? The Emergency Paid Sick Leave provides up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider).
Last question and it’s a multi-parter. In Scenario #4, my employer asks me to travel to New York for work. Is the company obligated to tell me that I’m going someplace where I have to quarantine? If so, do I have to go? And if I say no, am I protected from retaliation?
[Cherveny] The first part of this question (regarding communications) is a very complicated situation. Employers will want to confer with their legal counsel to create a communication policy that is in compliance with the specifics of their industry OSHA standards. While the OSHA General Duty Clause does not have a specific notice provision or requirement, an employer would likely have a difficult time ensuring the health and safety of its employees without informing them of the 1) COVID-19 conditions (i.e. the hotspot status); and 2) the required safety protocols by the company. Likewise, the employer will likely have to inform the employee of his or her obligations to self-quarantine and will have to prohibit the employee from visiting the local offices/clients (on either/both ends of the trip depending on which end requires quarantine) until satisfaction of the quarantine period.
Regarding the second part of the question (regarding retaliation), in April 2020, the Department of Labor (DOL) issued a press-release ‘Reminding Employers that They Cannot Retaliate Against Workers Reporting Unsafe Conditions During Coronavirus Pandemic’. In this press release, the DOL reminds employers that employees have a right to work in a safe and healthy workplace. The DOL instructs employees:
If you believe working conditions are unsafe or unhealthful, you may file a confidential complaint with OSHA and ask for an inspection. If possible, tell your employer about your concerns.
The DOL also explains that employees have a right to file whistleblower complaints and provides the contact information for OSHA. The DOL also further states:
It is illegal for an employer to fire, demote, transfer or otherwise retaliate against a worker who complains to OSHA and uses their legal rights.
It’s against this backdrop and emphasis on whistleblower protections that we answer this question with a resounding ‘Yes!’. In fact, as of August 13, 2020 the DOL has received 2,540 whistleblower complaints.
It’s for these reasons that we continue to instruct employers to take all safety concerns and complaints seriously. Employees that express safety concerns may have a misperception of the workplace safety programs – this creates an opportunity to correct their understanding and reinforce your safety rules and programs. Additionally, employees with safety concerns may have underlying protected reasons for their concern. The Equal Employment Opportunity Commission (EEOC) specifically instructs employers in their March webinar to take employee’s concerns seriously and try to better understand the reasons. If the employee, for example, has an underlying health condition the employer may need to address the Americans with Disabilities Act.
I want to extend a huge thanks to Carrie for sharing her knowledge with us. If you’re looking for additional resources, be sure to check out HUB International’s COVID-19 FAQ. This is a 200+ question FAQ updated each week to consolidate the ever-changing and updated regulatory information across all aspects of employment including benefits, health and safety, and employee relations. I also found this article Fast Company article on COVID-19 travel maps to be very interesting.
I realize this article was longer than a usual HR Bartender read, but I hope you found it interesting. I know everyone wants life to return to normal. That includes traveling. But taking a trip across state lines is complicated – for both the employee and the employer. I hope this article offered some perspective into the best way to craft a policy and communicate expectations.
Image captured by Sharlyn Lauby at the Orlando International Airport in Orlando, FL14