It’s that time of year when many folks look forward to seeing family members near and far. In the context of the pandemic, however, the CDC and many state and local officials are recommending that folks avoid travel and gatherings with those outside of the immediate household. Given the workplace impact of employees’ holiday travel – with possible infections, exposures, and quarantines – employers are wondering whether they can prohibit employees from traveling during the holidays. And the answer, of course: It’s complicated.
Employers can require employees to report on personal travel and can require compliance with CDC travel restrictions. Whether other travel may be prohibited depends on state law. Some states have legal off-duty conduct laws that prohibit employers from taking any adverse employment action based on such conduct, which would include travel. In states without such laws, employers may likely prohibit such travel and/or may take disciplinary or other action based on such travel.
Employers can require employees traveling to CDC Level 2 or 3 countries or areas with positivity levels that exceed a particular percentage (often addressed by state emergency orders or travel advisories) to self-quarantine for up to 14 days before return to work, even if the employee exhibits no symptoms. In addition, a number of states and local jurisdictions have imposed such quarantine requirements for travel to/from certain states. At this time, many employers are taking the precaution of requiring such self-quarantine for any travel, given the increasing community spread occurring within the U.S. If such self-quarantine is not required by the employer or state travel advisories/orders, employers can still require employees who have traveled to self-monitor and report any COVID-19 symptoms or exposure to COVID-19.
Employers may also require employees to get tested following travel. The EEOC permits such testing before allowing an employee to return to work. Some jurisdictions also provide for testing in lieu of the above-mentioned quarantine, in some cases after a several-day waiting period. However, the CDC notes that it can take up to 14 days for the infection to appear. That means that even after someone tests negative, even if they waited several days to do so, they may still test positive later.
As for what leave employees may take during any post-travel quarantine period, they may be entitled to Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (applicable to private employers with up to 500 employees), as a result of governmental quarantine requirements, depending on whether such requirements constitute an “order” of quarantine, or a doctor’s order that they quarantine. They would not be eligible for EPSL as a result of an employer’s required quarantine period. Other state and local COVID-19 leave laws may also apply to quarantine periods. If an employee is out of (or not eligible for) FFCRA EPSL or such other COVID leave, an employer could allow them to use whatever other accrued paid leave they have, although likely not sick leave since they are not actually sick – unless their doctor is recommending that they stay home.
Absent a doctor’s order that triggers the use of sick leave, employers may also require that employees take the time off unpaid, even if they have accrued paid leave. A cautionary point about unpaid leave, however—under the FLSA, if exempt employees are ready, willing and able to work and do not work due to the employer’s directive, they must be paid their full salary in any workweek in which they perform work. In that instance, requiring exempt employees to use available paid leave is a better option.
In addition, we believe that an employer may deny an employee’s request for leave (during which the employee would travel) based on the negative impact on the business if the leave were to be granted – i.e. that following the leave, the employee would have to remain out of work for an additional 14 days. (This assumes, of course, that the employee could not telework during the 14-day period.) This is a rather aggressive approach, but it is within an employer’s discretion whether to approve leave requests. Of course, the employer must be consistent in how it treats such leave requests.
So, as to holiday travel this year – Bah, humbug!
(This blog post is excerpted from our extensive and continually updated COVID-19 FAQs (which will next be updated on November 12, 2020) – and that’s our holiday gift to you!)