The holiday season in the United States is a time when many millions of Americans get together with friends and family to celebrate. For many Americans who live away from their loved ones, this requires travel, a lot of travel. For the year 2019, AAA estimated that over 115 million Americans travel between December 21 and January 1. With the pandemic raging on, many Americans are choosing to stay home; in fact, AAA estimates a 10% drop in Thanksgiving travel compared to last year. While this decline is likely to be mirrored during the month of December, that still leaves nearly 100 million travelers in the United States this year. This has left many employers with questions. In this month’s blog, we’re going to tackle a couple of common questions related to employee travel during the COVID-19 pandemic’s first holiday season.
Can I require my employees to tell me about their holiday travel?
Yes. In general, employers may require employees to disclose their holiday travel plans. However, employers should be careful to avoid overly-intrusive disclosure requirements and should stick to whether or not the employee is traveling out-of-state, and to what state the employee traveled. The EEOC has specifically stated that where state health officials have recommended an employee quarantine after returning from out-of-state travel, an employer may require disclosure. For Ohio employers, the Department of Health has issued a travel advisory for anyone traveling to states with a testing rate of 15% or higher. The ODH provides a list of states and their positivity rates here. Nearby states with positivity rates above 15% include Pennsylvania (36%) and Tennessee (19%). However, Kentucky (13%) and Indiana (13%) are close to the threshold.
Can I require my employees to quarantine after returning from travel?
Yes, employers may require employees not to report to work if they have traveled out of state. However, it is advisable to limit the required quarantine to those employees who have traveled to a state with a positive test rate above 15%. Employers should be sure to notify employees of the quarantine requirement as soon as possible and should also be careful to apply it consistently across their workforce. Employers should also permit employees to work from home, if possible. Those employers with unions should check the collective bargaining agreement.
Can an employer require an employee to provide a negative COVID-19 test after traveling?
Yes, so long as the employee will be entering the workplace. Employers are permitted to administer medical tests that are “job related and consistent with business necessity.” The EEOC has specifically stated that the current circumstances of the pandemic permit employers to take screening steps to determine whether an employee poses a direct threat to the workplace, including COVID testing. Employers should be careful to choose testing procedures that are accurate and reliable, but also provide the information the employer is seeking. For instance, an antibody test, which only shows that an employee had COVID at some point in the past, is not going to alert the employer to an active infection. Thus, the antibody test is not likely to be job related or consistent with a business necessity. Employers need to consider if this testing will be required for employees who travel out of state and if it will apply to those employees who received visitors from out of state.
Can I ask an employee returning from travel if one of their family members they saw during the holidays has COVID-19?
No. The Genetic Information Nondiscrimination Act (GINA) specifically prohibits employers from asking employees about their family’s medical conditions. However, the EEOC has confirmed that employers may ask employees if they have had contact with anyone who has COVID-19, which is not prohibited by GINA.
Overall, employers should be careful to narrowly tailor questions regarding holiday travel to the needs of the business and for the purpose of protecting the workplace from COVID-19 exposure. If an employee is working from home and will not need to report to a location in person or meet with clients, then it probably is not necessary to ask about their travel. Additionally, employers should plan ahead to determine what form of leave, if any, the employee will receive while quarantining after returning from travel. As we have stated from the beginning, employers should remain flexible when it comes to working with employees around pandemic restrictions. However, that flexibility is not unlimited. This means employers need to think and plan ahead so that policies make sense and are applied consistently across the workforce.
The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP regularly assist employers with personnel issues. If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614-221-1216.