By Shelby Matsumura
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As of June 1, 2020, there have been nearly 2,000,000 confirmed cases of Coronavirus in the United States, with over 100,000 of those cases resulting in death. This pandemic has had a devastating impact on people everywhere. As our country begins to slowly open up again, stay-at-home orders may be phased out with restrictions on travel being gradually lifted. Business owners have been taking every precaution recommended by the CDC to protect their employees from COVID-19, but if employees want to take some much-needed vacation time to celebrate the country’s re-opening, can business owners say no? Or what if an employer is eager to get their business back on track and would like to send their employees on business trips again, can they compel employees to do so at this time?
As employers continue to take the necessary precautions to protect the health and safety of their employees, employers must also consider the limits of what they can and cannot regulate in terms of employee travel. Please note that, at this time, the Centers for Disease Control and Prevention (CDC) recommends avoiding all non-essential international travel and cautions that if you travel within the U.S. and get sick, access to medical resources may be limited. The best way to protect yourself is to stay home. For tips on traveling during the Coronavirus pandemic, check out the CDC’s article “Considerations for Travelers” here.
3 Frequently asked questions about what employers can and cannot do regarding employee travel
1. Can employers continue to send employees on business trips during the pandemic?
Short answer: Yes, but be aware of the employee safety requirements under the
Occupational Safety and Health Act and the Americans with Disabilities Act.
The main legal framework that employers need to be familiar with in addressing this question is the Occupational Safety and Health Act of 1970 (OSHA). Under the “General Duty Clause” of the OSHA, every employer is required to provide their employees a place of employment that is free from hazards that cause or are likely to cause death or serious physical harm to the employees.
So, while the short answer is yes, employers can compel an employee to go on a business trip (because the duties and requirements of a job are well-within the employer’s discretion), there are important legal considerations a business owner should recognize before making this decision. If the business trip requires traveling to affected areas and the employee has a good faith belief that they are being put at risk of death or serious physical harm, then they could have a claim under the OSHA for being exposed to unsafe working conditions. However, if the employee has a disability, recognized by the Americans with Disabilities Act of 1990 (ADA), then they may be able to refuse business travel and ask for a reasonable accommodation, such as video conferencing.
Furthermore, although an employer is within his legal rights to enforce business travel on employees, it may not be a good idea to do so for your employees’ sake during this pandemic. Ignoring employee concerns over contracting COVID-19 and forcing them to go on a business trip may lead to anger and resentment towards upper management that can negatively impact team morale as a whole. To keep employees safe while complying with the CDC’s recommendations of limiting non-essential travel, consider how the objectives of these business trips can be accomplished virtually.
Ultimately, in taking all of these factors into consideration, business owners should be aware of the areas that the Coronavirus has spread up to this point. Employers can track these updates at the CDC’s Traveler’s Health Notices to inform themselves before making any decisions regarding employee business travel.
2. Can employers prohibit their employees from traveling to areas that are affected by the Coronavirus?
Short answer: No, employers cannot prohibit otherwise legal activities that their employees do on their own personal time.
Generally, employers have no say in what employees do outside of work and cannot dictate what employees do in their free time. If an employee shares their upcoming travel plans to a COVID-19 affected area, an employer cannot force that employee to change vacation destinations. If the territory the employee will be traveling to is not under any travel restrictions by the government or the CDC, there is not a lot, legally, that an employer can do to restrict travel.
If small business owners are worried about an employee’s upcoming travel plans, here are some actions they can take to express their concerns without infringing on the employee’s private life and activities:
· Inform the employee of any current risks of travel. Check out the CDC’s travel advisory world map regarding international cases or “hot-spots” of Coronavirus, as well as their data tracker for U.S. cases by state.
· Advise the employee to travel with whatever equipment is necessary to allow them to work remotely just in case any travel bans are implemented that could leave them stranded.
· Share any policies or practices that may affect the employee’s ability to return to work after they are done with their trip. For example, if an employee travels to a CDC Warning Level 3 advisory country, the government requires a 14-day period of self-quarantine upon re-entering the U.S. The employee should be made aware of such policies because they will have to work from home for 2 weeks once they return. For more information on employee travel, check out this FAQ from the National Law Review.
Under the ADA, employers are not allowed to make disability-related inquiries that would reveal an employee’s disability status. As I have discussed in my blog post “Employee with Covid-19? A Public, Private Issue”, asking an employee if they have Coronavirus can qualify as a disability-related inquiry. The exception is that these inquiries can be made if the employee is demonstrating Coronavirus-like symptoms that may be posing a direct threat to the workplace.
However, when an employee returns from travel, employers do not have to wait for the employee to show symptoms before they ask about potential exposure to the Coronavirus during their trip. Because the CDC has labeled certain places as Warning Level 3 advisory countries that require a mandatory quarantine period, employers are allowed to ask their employees if they are returning from one of these locations. For more information, read this article on pandemic preparedness and the ADA from the U.S. Equal Employment Opportunity Commission (EEOC).
3. Can employers deny an employee’s vacation request due to health and safety concerns, or to supplement an already limited staff?
Short answer: Yes, regardless of the reason, employers can reject an employee’s vacation request.
While the Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards, it does not require paid time off for vacation, sick days, or holidays. As explained by Mathew & George, everything about employee vacation time is within the discretion of the employer. However, if they offer paid time off, it must be available to all employees regardless of race, gender, religion, or other characteristics.
Vacation time is not required by federal law, so employers can deny an employee’s vacation request with virtually no legal repercussions. Nevertheless, there is an exception for employees covered by a union contract or a specific employment agreement that guarantees a certain amount of paid time off. For more information, check out The Wall Street Journal.
Ultimately, if you or one of your employees must travel, try to follow the CDC’s recommendations and avoid contact with sick people, resist touching your face, and wash your hands often or use hand sanitizer. Do not travel if you are feeling sick.
Are contact tracing apps the future of small business owners?
In trying to keep their workers healthy and safe, many employers have already participated in contact tracing practices, such as asking COVID-19 positive employees whom they have had close contact with in the last 14 days. If this employee had been amongst other coworkers during this time, then the employer must inform the team without revealing the affected employee’s identity. These interviews require a lot of time and work on the part of a business owner and it can be hard for employees to remember every person they came into contact with during the past 2 weeks.
In response to this pandemic, contact tracing apps for phones have been released to track interactions with other people and to inform users if they may have been exposed to a COVID-19 positive individual. This technology works by using GPS, to determine your location relative to other users of the app, or Bluetooth, to measure the specific distance between you and other users. Through these apps, contact tracing can become a more efficient process for informing those who have been in close proximity to someone with the Coronavirus.
However, whether a business owner should implement these apps amongst their employees is a complicated issue. These apps can pose a risk to individual privacy because they record and log interactions with other people. If someone were to share this information, it could expose who that individual associates with and lead to assumptions about that person.
If a small business owner is interested in facilitating the use of contact tracing apps, here are a few preliminary considerations.
Because these apps can represent privacy concerns for employees, employers should not require their employees to download the app. Business owners should gain informed, voluntary, and opt-in consent from their employees first, as explained by the Electronic Frontier Foundation. Employees should be made aware that this app will keep a log of people they come into contact with and that if they are uncomfortable with this idea, then they do not have to participate and there will be no punishment for refusal. If an employee decides to use the app, they should also be allowed to turn it off at any point. People who participate in certain activities that they’d like to keep confidential, such as a doctor’s appointment or a political gathering, should be able to conduct these private activities without worrying that they are being monitored. For more information on contact tracing, check out Ogletree Deakins.
Whether to use a contact tracing app or not is within the employer’s discretion, but every business owner should understand that, for employees, their privacy may outweigh the benefit of using such an app. Employers cannot force employees to make that sacrifice, even if it would make Coronavirus prevention more efficient and less labor-intensive. Further, if only some employees use the app and others don’t, on top of being able to turn the app off at any time, the data may be skewed or underreporting cases of COVID-19.
Nevertheless, if you are a small business owner and you believe that contact tracing apps may be a good fit for your company, then discuss this option with your employees. If they are open to it, it may be a great way to monitor and manage the Coronavirus in your workplace.
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