By Bill Dugan, Susan Eandi and Robin Samuel

Law360 (July 2, 2020, 12:57 PM EDT )

Bill Dugan

Susan Eandi

Robin Samuel

Even though vacation plans may be hampered by face coverings and social distancing this summer, U.S. employers are still likely to see requests for time off from employees who want to step away from sheltering in place and visit reopening regions.

But while employers may agree that their employees should take a break from work, they shouldn't agree to putting other employees or customers at higher risk of catching COVID-19 when a traveling employee returns.

What can U.S. employers do without crossing the line to keep tabs on vacationing U.S. employees? Below we address some common questions.

Can I ask my employees about their travel plans when they request vacation time? Or can I ask them where they went when they return from vacation?

Yes, you can ask employees requesting vacation time to disclose their travel plans, or ask employees where they traveled once they return. The key is to make sure the information you're requesting is in accordance with business necessity and that you are asking for the information in a nondiscriminatory manner.

Business Necessity

Employers have a general duty under Section 5(a)(1) of the Occupational Safety and Health Act to ensure that the workplace is free from recognizable hazards likely to cause death or serious physical harm. Keeping the workplace and employees free from cases of COVID-19 provides the business justification employers need to ask where employees are going during their time off.

If your workforce is still working remotely, you have a business justification to make sure your employee travels with a company laptop or other necessary equipment should the employee become stranded or be required to quarantine upon return. Employees may want to know why you're asking about their personal vacation plans; be prepared to explain why you're asking.

Nondiscriminatory Questioning

Employers need to be careful not to run afoul of the Americans with Disabilities Act, Title VII of the Civil Rights Act and similar state laws when questioning employees. Here, neither are inherently implicated by asking about employees' travel plans, but could be if you ask only certain employees where they are going.

If an employer asks Chinese employees requesting vacation time to disclose their travel plans, but does not ask any other employees, the employer's request could be viewed as discriminatory on the basis of national origin in violation of Title VII. Similarly, if an employer has an employee known to be immunocompromised, and asks only that employee to explain his travel route and destination, the employer's questioning may be considered discriminatory under the ADA.

If you're going to ask about your employees' travel plans, be sure to ask all employees in a consistent manner. And make sure managers and supervisors responding to vacation requests are trained to ask these questions using nondiscriminatory methods.

One of my employees told me she is traveling to a region that is a current COVID-19 hot spot. Can I require her to self-isolate for 14 days?

It depends. Check the following:

Is your employee traveling abroad?

The U.S. Department of State[1] has issued a global Level 4 health advisory, advising U.S. citizens to avoid all international travel due to the global impact of COVID-19. The Centers for Disease Control and Prevention[2] currently recommends anyone traveling internationally self-isolate for 14 days upon return to the U.S. If your employee is traveling abroad, your employee should not return to the workplace until the end of the 14-day self-isolation period.

Is your employee traveling on a cruise ship?

The CDC[3] currently recommends all people defer travel on cruise ships, including river cruises, because the risk of COVID-19 transmission on cruise ships is high. The CDC has advised passengers returning from a cruise ship or river cruise voyage to self-isolate for 14 days, monitor their health and practice social distancing. If your employee is traveling on a cruise ship or a river cruise, don't allow your employee to return to the workplace until your employee has self-isolated for 14 days.

Do state or local laws require self-isolation?

Your employee may be required by state or local health laws to self-isolate depending on where they are traveling. For instance, all individuals entering the state of Florida[4] from an area of substantial community spread of COVID-19, including the New York tri-state area — Connecticut, New Jersey and New York — must isolate or quarantine for a period of 14 days from the time they enter Florida, or the duration of the individual's presence in Florida, whichever is shorter.

Conversely, the governors of the New York tri-state area announced a joint incoming travel advisory[5] beginning June 25, imposing a 14-day mandatory quarantine for individuals entering the tri-state area from states with a significant degree of communitywide spread of COVID-19 — based upon a seven-day rolling average of positive tests in excess of 10%, or number of positive cases exceeding 10 per 100,000 residents — including Florida.

If you are an employer in Florida and your employee travels to the New York tri-state area, or vice versa, your employee will be required by law to isolate or quarantine for 14 days before returning to the workplace. There are some exceptions for emergency travel, commercial activity and student travelers in Florida, and exceptions for brief passage (less than 24 hours) through the states and for essential workers in the tri-state area, so check the relevant executive orders and travel advisories to see if they apply.

Does the employee have symptoms, or was the employee in close contact with someone who tested positive for COVID-19?

If you notice, upon your employee's return, that the employee has symptoms of COVID-19, you can follow your protocol for any other employee with COVID-19 symptoms. Send the employee home, ask the employee to monitor their symptoms and seek medical care if necessary, and notify your employee of their leave options.

The same applies if your employee returns and discloses, either in conversation or through your regular screening protocol, they were in close contact — within 6 feet of distance for 10 minutes or more — with someone who was positive or presumed positive for COVID-19.

If the answer to any of these questions is no, follow the CDC's general guidelines[6] regarding travel to assess whether the employee should self-isolate. Considerations include whether COVID-19 is spreading where the employee is going and whether the employee will be able to socially distance during travel.

If you don't require the employee to self-isolate and the employee returns to the workplace immediately after returning from traveling, require the employee to follow the safety and hygiene protocols all employees are required to follow, such as screening for symptoms before entering the workplace, wearing a cloth face covering, following social distancing protocols in the workplace, washing hands frequently, and using hand sanitizer. 

I have employees who have indicated they are taking time off to attend events such as protests, concerts and campaign rallies. Can I require them to self-isolate before returning to the workplace?

It depends. Employees generally are free to take part in lawful activities outside of work hours.

However, because of the severity of COVID-19, employees who attend large gatherings may put others in the workplace at greater risk of catching COVID-19. Under current federal, and certain state, guidance, employers can monitor employees' health to minimize the risk of COVID-19 in the workplace, including by requiring daily temperature checks, symptom surveys regarding recent exposures or risks, and diagnostic tests for active infections.

It follows that employers should be able to take steps to protect their workplace by requiring employees returning from large gatherings to either self-isolate or take a COVID-19 diagnostic test.

The CDC recently issued guidance[7] regarding events and gatherings, and designated large in-person gatherings where it is difficult for individuals to socially distance and where attendees travel from outside the local area in the highest-risk category. Certain cities and health agencies also have recommended that participants in recent protests against racism get tested for COVID-19.

Crowded protests, concerts and campaign rallies all fit the bill. However, depending on where employees are located, employers must consider whether the activity is considered political in nature, and whether requiring employees to self-isolate could be considered retaliation for participation in lawful off-duty conduct.

Off-Duty Political Activity and Retaliation

Requiring employees to self-isolate when they return from political events such as protests or campaign rallies could be viewed as retaliation for employees' engagement in political action, which is specifically prohibited in several states, such as California and New York, and cities, including Seattle and Madison, Wisconsin. In those locations with no prohibitions, employers may require employees to self-isolate or to take a diagnostic COVID-19 test.

However, employers should consider the impact on employee morale, which may take a dive if employees think employers are infringing on employees' right to political expression outside of the workplace.

Off-Duty Recreation

On the other hand, concerts, unless related to a political cause, are not political action. If an employee discloses he was at a concert, or another nonpolitical large group gathering, the employer may require the employee to self-isolate for 14 days or take a COVID-19 test. To avoid any claims that an employee was treated unfairly, employers should handle all employees consistently and be certain not to discriminate when applying policies.

Regardless of the type of event employees attend, if they disclose symptoms of COVID-19 or close contact with someone who has, or is presumed to have, COVID-19 before they return to the workplace, they should be required to self-isolate.

I have an employee traveling overseas and I'm concerned about the possibility of her being stranded. Can I deny her vacation request?

If there is a business need, an employer can deny an employee's vacation request. For instance, if there is a high likelihood that your employee will be stranded overseas, and you need her for an important in-person company meeting or project right after her overseas trip is scheduled to end, you may require her to stay stateside until the important meeting or project has finalized.

However, where there is no business need, employees should be provided with leave and other paid time off for which they are eligible, and employers should be certain not to retaliate against employees for their vacation choices. Instead, work with employees on the best way to handle issues that may arise during their overseas travel.

• If the employee is able to work remotely, ensure that measures are in place to allow the employee to work remotely if stranded overseas, including requiring the employee to travel with a company laptop.
  
  
• If the employee is able to work from home and will be required to self-isolate on returning from travel, consider requiring the employee to take a company laptop home with them before leaving for their trip, and plan for the employee to work from home during the self-isolation period.
  
  
• If the employee is unable to work from home, discuss and determine leave options, such as taking paid time off or unpaid leave, for the 14-day self-isolation period.

Employers have little precedent to guide how they should handle vacationing employees during a pandemic. Maintaining a protected workplace, motivated employees and strong operations is a juggling act that requires, and will continue to require, employer flexibility. 

---

Bill Dugan is a partner at Baker McKenzie. He is chair of the U.S. disputes employment group and co-chair of the North American employment disputes group.

Susan Eandi is a partner at the firm. She is head of the global employment and labor law practice group for North America and chair of the California labor and employment practice group.

Robin Samuel is a partner at the firm.

Baker McKenzie attorney Autumn Sharp contributed to this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/.

[2] https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html.

[3] https://www.cdc.gov/coronavirus/2019-ncov/travelers/returning-cruise-voyages.html.

[4] https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-139.pdf.

[5] https://coronavirus.health.ny.gov/covid-19-travel-advisory.

[6] https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html.

[7] https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html.

For a reprint of this article, please contact reprints@law360.com.