Navigating COVID-19: Travel and the Workplace During a Pandemic

You are all packed up and ready for your “masked” Disney World vacation. You paid thousands of dollars in mostly non-refundable travel, hotel, and park access expenses long before anyone had ever heard of “social distancing.” You even purchased a cute pair of mouse ears to wear around the park. But the week before you leave, your employer e-mails all employees a new travel restriction policy that provides any employee traveling to Florida, among other COVID-19 “hot spots,” must quarantine for 14 days before returning to work. And no, the employer will not be compensating you for time spent in quarantine.

Or perhaps, instead, you have been happily teleworking for months now in your home state in Pennsylvania, but pandemic exhaustion is a real thing for your company, and now you’re expected to resume monthly travel to and from corporate headquarters in Texas. You are very concerned about risking your own health resuming regular air travel, but your employer is not responding to your concerns.

An employee carrying SARS-CoV-2 may or may not show signs of a COVID-19 infection, and even symptomatic persons vary greatly with respect to the symptoms they experience. As with the virus itself, employer reactions to the impact of the pandemic on their workforce vary from employer to employer and continue to change as infection rates rise and fall in different geographic areas and as we all learn more about this virus. Employers may or may not have a pandemic travel policy in place, which may or may not address any number of issues: Work travel protocol, personal travel restrictions, quarantine or isolation requirements, return-to-work COVID-19 testing, and more.

What’s an employee to do? Shouldn’t there be a constitutional right to vacation in the Magic Kingdom!? And who wants to go Texas, anyway!?

The purpose of this article is to explain what pandemic-driven travel restrictions are, what employer work rules that restrict travel might look like, and provide some legal guidance that might assist workers navigating these issues.

What do we mean when we talk about travel restrictions as they relate to COVID-19?

In the context of the current pandemic, “travel restrictions” are rules limiting travel or otherwise requiring the use of safety measures by travelers moving between countries, states, or localities. Travel restrictions may or may not be mandated by law or otherwise legally enforced, depending on where you are. These restrictions are an attempt to reduce transmission of the virus. For example, states with lower rates of infection might promulgate such rules to prevent a rise of cases caused by travelers entering the state from areas with higher rates of infection – so-called “hot spots.” Even in states that have such restrictions in place, there is a varying degree of enforcement. For example, some states, including New York, New Jersey, and Connecticut, require individuals arriving in their states from “hot spot” states to quarantine for 14-days upon arrival, subject to certain exceptions. These states have enforcement mechanisms in place, although there are varying accounts of how aggressive enforcement has been.

In contrast, states such as Ohio and Pennsylvania have non-mandatory travel recommendations in place which address the same issue. In Pennsylvania: “If you have traveled, or plan to travel, to an area where there are high amounts of COVID-19 cases, it is recommended that you stay at home for 14 days upon return to Pennsylvania. If you travel to the following states, it is recommended that you quarantine for 14 days upon return…” The list of states is periodically updated, but as of this writing contains 26 states including – sorry, Disney vacation — Florida.

In addition, and, perhaps in response to legal requirements and/or recommendations promulgated by state and local governments, some employers may also implement their own work rules restricting employee travel. The reasons for such rules vary, but many of the same factors motivate employers as motivate governments, although on smaller scale – they are seeking to reduce the impact of the virus on the workforce, reduce the risk of loss of productivity associated with employees absent due to illness or quarantine, and, of course, employers are seeking to reduce the risk of any liability stemming from infections in their workforce.

Indeed, employers who are, for example, covered by OSHA, are obliged to “furnish to each worker ‘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.” OSHA’s general duty clause applies to preventing occupational exposure to SARS-CoV-2. While there is no OSHA standard which particularly addresses SARS-CoV-2 exposure, the general duty clause, as well as some other existing OSHA standards related to occupational exposures may apply. While not legally binding, OSHA’s guidance on “Preparing Workplaces for COVID-19” includes a recommendation of “Discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks.”

What do employer travel restrictions consist of?

Employer work rules addressing travel during the pandemic have varied, but two common components are a notice requirement and a potential consequence or restriction stemming from that notice.

With regard to notice, employees taking vacations may be required to fill out a form either before or after the vacation in which they must identify whether they left the state and, if so, where they traveled. Alternatively, an employer might simply advise all employees of an obligation to notify the employer of any travel to a COVID-19 “hot spot” before returning to the workplace from such travel. Some employers might specify a list of places they consider “hot spots,” while others might simply attempt to define a COVID-19 “hot spot.”

With regard to the second component, the consequence of, for example, an employee advising the employer that their prescheduled vacation next week requires travel to Florida, employer policies may set forth any number of restrictions. The employer may require the employee to test negative for COVID-19 before returning to work; or may require them to quarantine or stay at home for 14 days; or may even disallow the use of vacation time for travel to a COVID-19 hotspot. Likewise, some employers pay for the testing they require or otherwise provide paid time off during the quarantine, whereas others do not. For some employers, whether an employee pre-paid for a vacation before the pandemic matters, in evaluating how they would handle the employee’s travel out of state.

What should workers know as they navigate pandemic-driven travel restrictions?

As a practical matter, a worker who is at-will, meaning they do not work subject to an employment contract or a collective-bargaining agreement, has little leverage in advocating for themselves in connection with new work rules restricting travel promulgated by an employer to address COVID-19. Collective action puts a worker in the best position to advocate for paid leave, for example, if a worker is asked to stay home or quarantine, or otherwise negotiate fair and equitable travel restriction rules that benefit the workforce.

If a worker is legally required to quarantine as a result of travel to an area with high rates of COVID-19 infection, their employer may be required to provide them with paid leave. The Families First Coronavirus Relief Act (“FFCRA”) currently requires public employers and private employers with under 500 employees to provide paid leave to eligible employees under certain conditions including to employees who are subject to a “Federal, State or local quarantine or isolation order related to COVID-19.” The Department of Labor has advised that shelter-in-place and stay-at-home orders may also qualify. Workers who reside in states or localities that mandate quarantine or stay-at-home after returning from travel to certain areas may qualify.

For workers whose employers are still insisting on travel that is raising health and safety concerns for the worker or their family, the state or locality they reside in may already have travel restrictions or recommendations in place. Workers with general workplace safety concerns can also look to OSHA, or its state equivalent where applicable, to raise workplace concerns about the spread of occupational disease.

In addition, workers with disabilities covered by the Americans with Disabilities Act (“ADA”), or a state or local equivalent, that make them particularly vulnerable to a COVID-19 infection should consider making a reasonable accommodation request to address personal health concerns stemming from travel requirements. The ADA may require an employer to adjust an employee’s schedule, including work travel, in certain circumstances.

Employees navigating new work rules addressing travel during the pandemic should remember that, while these are unprecedented times, there are laws in place that may assist them as they advocate for fair treatment and a safe working environment.

People