The hustle and bustle of the holiday season is upon us. Employees are discussing their typical travel plans for the holidays during an atypical holiday season. As COVID-19 cases across the country continue to rise, employers may be cautious of their employees travelling home for the holidays. In balancing employee relations and workplace safety, employers should look at a few key considerations and best practices.
Educate Employees About the Associated Risks of Travelling
The Centers for Disease Control and Prevention ("CDC") website states that travel increases someone's chance of contracting and spreading COVID-19. The CDC recently released guidance on Holiday gatherings that are meant to supplement state and local travel advisories. The state of Ohio guidance currently recommends, but does not require, employees to quarantine for 14 days if employees have travelled to states that report positive testing rates of 15% or higher. States vary regarding their travel advisories relating to COVID-19, and it is best to check your local state's website. Consider sharing both the CDC's and state's guidance with employees prior to the holiday season to encourage employees to stay safe if they decide to travel.
Employers Can Request that All Employees Self-Report Their Travel Plans but Should Avoid Limiting Employees' Personal Travel
In the absence of an employment contract, Ohio is an at-will employment state and Ohio employers in most cases can discipline employees for travelling outside the state during the pandemic as against company policy. Employers who implement disciplinary actions for personal travel should consider requiring employees to sign a form consenting to the travel policy. Each decision is case-by-case, however, and employers should take into account employee relations concerns. In lieu of a blanket discipline policy, employers can require employees who are back at the office to complete a questionnaire regarding their travel plans for the holiday season as long as the same questionnaire is sent to all employees and the results of the questionnaire are handled consistently to avoid violating federal and state anti-discrimination laws. The questionnaire should only ask questions about the individual employee and general contact with anyone diagnosed with the virus. The questionnaire should not be more probing than necessary and should avoid asking about personal details. For example, asking questions about family members who may have COVID-19 could violate the Genetic Information Nondiscrimination Act ("GINA").
Employers should also consider changing their vacation policies by requiring travelling employees to provide advance notice to their supervisors regarding where the employee will travel and the means of transportation. Employers can use this information to determine whether that employee will need to provide a negative COVID-19 test result or a doctor's note to return to work.
Employers should remind employees to bring necessary work materials and computers with them on their travels in case travel bans are implemented that prohibit the employee from being able to return to the office. In this reminder, employers could include the policies regarding the confidentiality of workplace documents and data security for remote working. In addition, employers should account for applicable wage and hour laws in monitoring remote work and limiting "off-the-clock" work for non-exempt employees.
Review Leave Policies
Ohio courts have approved the use of "use it or lose it" policies, which require vacation days to be used prior to a certain date (typically the end of the year) and do not roll over from year to year.[1] If Ohio employers have such a policy, employers should review that policy and consider whether revisions are necessary. With a year-end expiration date, employees may feel pressure to use their vacation days and travel during the holidays. If changing the policy, employers should provide sufficient notice to all employees of the policy change and the reasoning behind said change.
Upon Return to the Office, Require Employees to Get Tested for COVID-19 or to Quarantine Prior to Their Return
Remote work over the holiday season is not the right choice for every workplace. When employees return to the office from holiday travel, Ohio employers can require employees to produce a negative COVID-19 test result or to quarantine for 14 days if the employee travelled to a state with a 15% or higher positive rate.[2] Under the Families First and Coronavirus Response Act ("FFCRA"), the employee's health insurance bears the cost of the test and related office visits. According to EEOC guidance, the employer should bear the cost of the test when the employee is not covered by health insurance. Employers can also request employees to provide a doctor's note certifying their fitness to return to work. The Equal Employment Opportunity Commission ("EEOC") current guidance states that employers can test all employees for COVID-19 or test individual employees if the employer has a reasonable belief based on objective evidence that the employee might have COVID-19 (for further analysis regarding the EEOC guidance, see my colleague's Faruki+ blog post). Employers should keep in mind that requiring employees to produce a negative COVID-19 test may provide a false sense of security as COVID-19 symptoms take, on average, 5-6 days to develop, and thus, an employee carrying COVID-19 could test negative prior to the 5-6 day symptom onset.[3] Contagious asymptomatic employees may also produce a negative test result.
Post-travel questionnaires are another tool to keep the workplace safe. When the employee returns home from travelling, an employer can ask the employee to complete a post-travel questionnaire asking the employee to confirm that they are not currently experiencing COVID-19 symptoms. This questionnaire can be completed in addition to requiring the employee to provide a negative test result or self-quarantine.
If employees do quarantine, employers with 50-500 employees should be aware of the ramifications of the Emergency Paid Sick Leave Act ("EPSLA"). Under the EPSLA, a full-time employee is generally allowed to take two weeks of COVID-19 related paid leave.[4] COVID-19 related reasons include the employee being advised by a health care provider to self-quarantine or the employee experiencing COVID-19 symptoms.[5] Employees must provide the employer with documentation prior to taking EPSLA leave consisting of: (1) the employee's name; (2) the date(s) for which leave is requested; (3) a qualifying reason for the leave; and (4) an oral or written statement that the employee is unable to work because of the qualified reason to leave.[6]
At minimum, before the holiday weekend, employers should remind employees about social distancing and current travel advisories. After a busy holiday weekend, employers should provide a reminder to all employees regarding self-monitoring for symptoms and staying home if symptoms develop.
Employers should continue to seek up to date and accurate legal advice to make sure that they remain in compliance with local, state, and federal laws during these challenging – and ever-changing - times. Faruki lawyers are experienced at assisting employers with navigating these issues and have been staying up to date regarding the changing landscape of COVID-19 laws and regulations.
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[1] Ervin v. Oak Ridge Treatment Ctr. Acquisition Corp., 4th Dist. Lawrence No. 05CA27, 2006-Ohio-3851, ¶ 13-14.
[2] Ohio Department of Health, COVID-19 Travel Advisory, https://coronavirus.ohio.gov/wps/portal/gov/covid-19/families-and-individuals/COVID-19-Travel-Advisory/ (last visited November 12, 2020).
[3] World Health Organization, Coronavirus disease 2019 (COVID-19) Situation Report – 73, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid-19.pdf (last visited November 12, 2020).
[4] 29 C.F.R. 826.21(a).
[5] 29 C.F.R. 826.20.
[6] 29 C.F.R. 826.100(a).
