As the novel coronavirus pandemic evolves, employers have instituted a number of responses. They're taking workers' temperatures. They're asking for reports of fatigue, coughing or difficulty breathing. And many are telling workers who exhibit those symptoms — and certainly those who test positive for COVID-19 — to stay home.
More proactive employers may concern themselves with their workforces' exposure to the virus, and this calls employee travel into question.
Of course, COVID-19 has canceled many vacations, non-essential work trips and many other occasions that require any kind of locomotion. With shelter-in-place orders on the rise, many have been instructed to limit their travel to grocery store runs and, for essential workers, trips to and from work. As of April 2, five states remain without statewide or local stay-at-home orders.
Sixteen states, according to a report from CNN published March 31, have enacted some type of travel restriction. And the Centers for Disease Control and Prevention March 28 urged residents of New York, New Jersey and Connecticut to refrain from non-essential domestic travel for 14 days. Still, travel needs persist. Outside of these states, many employers may be interested in workers' travel and potential exposure to the virus, especially as some of these bans begin to lift.
But employers will need to think carefully as they inquire into employee travel, Fisher Phillips Attorney Samantha Monsees told HR Dive in an interview. "Generally, an employer cannot prohibit employees from traveling on their personal time," she said.
Organizations can ask workers where they're going and where they've been. "If an employer is going to do that, we caution that they be even-handed with that," Monsees said. "There are discrimination issues that could come into play that could be unintentional."
This is not the only COVID-19 response that could trigger such issues. The U.S. Equal Employment Opportunity Commission recently reminded employers that anti-discrimination laws remain in effect during a pandemic. When the disease first gained awareness, sources cautioned employers against "promoting an environment where there is potential discrimination against an employee because he or she is from China," where the disease was first detected. "It's a good time to remind employers to not enact policies against Chinese people but against people who have traveled to China."
This still applies, though the potential for discrimination may have broadened. "If there's someone who is some type of European descent, they'd also be protected" by national origin protection under Title VII of the Civil Rights Act of 1964, "if they can demonstrate that another person of a different protected class was treated differently or substantially better," Monsees said.
As the pandemic persists, employers can also address their response to employee travel. "Employers might want to make a temporary or interim change to their policy about how the employee's ability to return to work would be affected," depending on their travel, Monsees said. "You're going to want to make sure you're applying that across the board to everyone."
