Can Employers Restrict Travel by Employees?
As businesses re-open and increase business activity, more and more employers may face whether to monitor employees’ travel or restrict their return from long-distance travel. It is a legitimate concern. According to the CDC’s COVID-19 Travel Recommendations by Country website, there is currently nowhere in the world one may travel that is not experiencing “widespread ongoing transmission” of COVID-19. In addition, the U.S. has imposed restrictions to reentry to the U.S. from many countries including most of Europe.
Certainly, employers can regulate travel for work including canceling travel, limiting it to specific pre-approved situations, and requiring screening, testing, or that returning employees self-quarantine. Like most employment-related policies, employers need to be careful to apply any such restrictions or requirements in a consistent and uniform manner to avoid claims of disparate treatment, and also to protect the confidentiality of any test results. Employers who impose their own quarantine on employees returning from travel who cannot work remotely should consider that the employee is only eligible for Emergency Paid Sick Leave under the Families First Coronavirus Response Act if the quarantine is required by a government order or advised by the employee’s health care provider.
The issue becomes murkier for nonbusiness travel when an employee engages in travel on their own time. EEOC’s guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” provides the following question and answer regarding travel:
- When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
Answer: No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
Such travel inquiries would fall under an employer’s screening of employees generally. Pursuant to the EEOC’s guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act,” employers may screen their employees regarding COVID-19, so long as employers treat all employees uniformly and protect the confidentiality of the screening results. Screening can include asking employees if they are experiencing symptoms, taking their temperatures, and even requiring they be tested. Requiring employees to provide information regarding personal travel, provided all employees are treated equally, serves the same purpose as other screening: protecting employees from the legitimate threat posed by COVID-19. Similarly, an employer could require that all employees who engage in personal airline travel or personal international travel (or some other risk-increasing criteria) be tested before returning to work or self-quarantine.
An employer is probably on shaky legal ground if it forbids employees from traveling on their own time or disciplines employees for doing so, particularly if the travel is otherwise unrestricted by law or government order. An exception might be those employees who work in a high-risk setting where the increased potential for infection could pose an unacceptable risk to the workplace or the public. For non-high-risk employment settings, the better course of action is to screen all employees so that any employees who do travel can be screened or quarantined if warranted. If the employee insists on personal travel and cannot work remotely, an employer may be justified in requiring that an employee whose travel falls within an employer’s requirement that the employee self-quarantine upon return, use personal vacation time or quarantine without pay if the time cannot be covered under the Emergency Paid Sick Leave requirements of the FFCRA.