Even after the COVID-19 pandemic, experts say business travel likely won't return to normal.
By the time the coronavirus outbreak was declared a pandemic in March 2020, businesses were already cutting back or eliminating nonessential work-related travel and focusing on building a remote work infrastructure to keep business operations afloat amid widespread lockdowns.
A year later, management-side lawyers say the pre-pandemic environment in which business trips were automatically approved with little hesitation will likely never return, and that "new normal" means a new set of potential legal and logistical challenges for employers.
"I think business travel will return, I just don't know if it will return to the same level that it was," said Benjamin Kim, chair of
Nixon Peabody LLP's occupational safety and health practice. "I think people have been forced to learn new technologies [and] invest in new technologies to allow people to meet virtually, and people are going to still do those things."
From a near-term surge in trips to potential bias claims based on vaccine status, here are four things employers should be on the lookout for as job-related travel gets back underway.
Short-Term Spike
With more and more vaccinations taking place and President Joe Biden recently declaring that all American adults who want a vaccine can get one by May, workplaces and society in general may be approaching the point where pandemic-inspired restrictions can be lifted.
Given the possibility that people will be burnt out from being cooped up, Ashley Prickett Cuttino of
Ogletree Deakins Nash Smoak & Stewart PC said businesses and employees should be ready for a sharp rise in business travel. But that trend isn't likely to persist, given the heavy investment in remote work that many businesses made over the past year.
"What we may see is when things reopen, [there will be] a quick uptick in it as everyone kind of wants to reconnect in person, but long-term we have realized that a lot more can be done remotely," said Cuttino, who is co-leader of Ogletree's COVID-19 litigation practice. "So, long term, I think we may see a downtick because we can do more [remotely]. Business travel, whether that be sales or meetings, a lot more of that I think will continue to be done over these platforms."
But even if workers get the itch to get back on the road, there simply won't be as many offices or conference rooms for people to travel to because companies are shedding office spaces and more employees are setting up shop from home permanently, said Rachel Conn, a partner in Nixon Peabody's labor and employment group.
"Where maybe [someone] would go visit colleagues in another office or you would go visit a client at their office, now there are less companies with offices to visit," Conn said.
Struggle to Maintain a Personal Touch
If businesses eschew travel in favor of virtual meetings and telework in the years ahead, they'll realize certain benefits, chiefly lower costs and fewer safety risks. But lawyers say those advantages come with a downside — a weakened ability to build sturdy relationships between colleagues and with clients through face time.
"The piece that is often affected ... is the personal relationships and the team bonding piece. And that is something that can be hard to replicate over Zoom, try as we might," said Lindsey Conrad Kennedy, a management-side attorney at
Eckert Seamans Cherin & Mellott LLC. "I would expect to see that employees will return to traveling for work — maybe not so much for regular business meetings or tasks, but rather for the bonding and relationship-building experience."
From a practical standpoint, that may mean employers will set aside more money in their budgets for "relationship-building events" or "unstructured social experiences" instead of run-of-the-mill meetings in conference rooms, or place an emphasis on "more creative" getaways in places like resorts that are aimed at cementing business relationships, even if the overall volume of business travel drops.
"I think work travel will return, but I think it will have a different twist," Kennedy said.
William Milani, head of
Epstein Becker Green's international employment law group and vice chair of the firm's board of directors, similarly said there was an increasing recognition as the pandemic wore on that certain aspects of in-person gatherings — even things as simple as eye contact or interpersonal gestures — can't be necessarily replicated through a computer screen.
For employers, that'll mean engaging in a new type of balancing act that wasn't typically needed before the pandemic: weighing the worth of an in-person event against the practicality of people being able to get their work done virtually.
"I know from my own perspective I do a fair amount [of work] with multinational clients, and I've always found over the years that those travels, those in-person meetings, those speeches are so important in developing relationships," Milani said. "From my standpoint, I think those things will continue to be valuable, but I think there will be heightened scrutiny around whether a particular trip or trips really … requires you to be there in person."
Who Gets to Travel?
If employers become more reluctant in signing off on trips, be it for safety reasons, costs or a combination of other factors, the biggest risk they may face from a legal perspective is an increase in discrimination claims.
In the context of business travel, those types of allegations can manifest themselves in multiple ways. For example, a working mother, an older employee or someone with a medical condition might have a valid bias claim if their employer erroneously presumes they can't travel and doesn't give them the same travel opportunities that others receive, which can damage a person's earnings or career advancement relative to their peers.
"I do think there's a risk for employers who pick and choose who is permitted to travel and who isn't," Kennedy said. "Ideally, employers would treat employees and … the requirement to travel in the same way they did prior to the pandemic. Making assumptions about employees who want to travel or who cannot easily travel is pretty dangerous."
Allowing business travel or remote work is one area in which
Milani said employers will have to "take care to ensure that they are treating similarly situated employees" the same way and make certain they are using uniform criteria when they assess whether particular business trips are worth approving, instead of making decisions on an ad hoc basis.
"If you are going to permit certain of your employees to engage in business travel, on what objective basis are you making decisions as to who may or may not do so?" Milani said, noting that the same analysis would apply regarding who gets to telework. "I think it's important as employers consider these things that they do spend some time focusing on what the objective business reasons for the decisions that they're making are."
Vaccine Status May Be a Battleground
Besides potential bias based on categories already protected under civil rights law, a looming issue that will "inevitably come up" is whether an employer can or should draw a line regarding who can travel based on whether they have received a COVID-19 vaccine, according to Kennedy.
Denying unvaccinated employees the chance to travel because they aren't inoculated "could be problematic" for employers, as would, alternatively, forcing those who have been inoculated to shoulder a heavier travel burden to cover for their unvaccinated colleagues, she said.
While employers should "want to be flexible with employees" who express a desire not to travel given the lingering risks, she said "balancing this flexibility with consistent enforcement of policies is a challenge."
"Anytime you make a distinction in work duties or privileges based on anything having to do with an employee's medical status, you run the risk of a discrimination claim," Kennedy said. "As we've seen in other areas like telework, once an employer starts creating exceptions to the rule that are not legally required, it becomes a slippery slope."
--Editing by Abbie Sarfo.
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