With COVID-19 vaccines becoming widespread and companies trying to resume travel safely, employers may wonder if they can request “vaccine passports” – proof of vaccination – before employees are allowed to travel to work.
“It’s legal to just ask for proof of vaccination against COVID-19,” said Mark Phillips, an attorney with Reed Smith in Los Angeles. However, any follow-up questions, such as why an unvaccinated employee did not get a vaccination, could be provided with information about a disability and would be covered by the Americans with Disabilities Act (ADA) and other labor laws that require such inquiries to be made “job-related and consistent with business necessities. ”
Phillips said employers should therefore generally avoid employees disclosing medical information in addition to proof of vaccination. Employers should also continue to consider whether business travel is required or whether alternative arrangements can be made for face-to-face meetings.
Legitimate business reason
Although many companies
no compulsory vaccination, employers should have a plan in place in case vaccination is required from travel suppliers or business partners. What if a seller has to travel and certain airlines and hotels require customers to provide proof of vaccination? What if venues require vaccination of all contractors?
Employers need to consider how industry rules and state, state and local regulations affect business travel for vaccinated and unvaccinated employees, said Stephanie Rawitt, an attorney at Clark Hill in Philadelphia. Can the employee perform the essential functions of the workplace? Are there any alternatives to travel?
“Create clear, transparent guidelines to raise expectations,” said Rawitt.
Employers can require or require their employees to provide proof of vaccination if there is a legitimate business reason to do so, said Alexa Miller, an attorney at Faegre Drinker in Florham Park, New Jersey. You may need to know vaccination status in order to plan important business trips and prepare for quarantine requirements upon arrival or return from travel, she noted.
When employers mandate a COVID-19 vaccination, they must take reasonable precautions for workers with underlying medical conditions that prevent them from receiving the vaccine. Similarly, Title VII of the Civil Rights Act of 1964 requires employers to consider reasonable accommodation for workers with serious religious objections to receiving a vaccine.
Without a medical or religious exemption from compulsory vaccination, an employer may have different policies for vaccinated and unvaccinated workers. “But employers should be very careful with such an approach and seek legal advice beforehand,” said Phillips.
Keep up with travel advice
As employers plan work trips, they should review COVID-19-related rules in the jurisdictions where their offices are located as well as the places employees will visit, said Lauren Leyden, attorney at Akin Gump in New York City .
It can be difficult to create travel policies that are in line with federal, state, and local guidelines because the rules change frequently and can vary from place to place.
“The travel restrictions are being relaxed more domestically than internationally,” Leyden stated. For domestic travel, the U.S. Centers for Disease Control and Prevention (CDC) have stated that fully vaccinated people do not need to be tested for the coronavirus before or after a trip, or in isolation on their return. The agency continues to advise unvaccinated people to avoid unnecessary travel. If they need to travel, unvaccinated individuals should continue to receive COVID-19 tests before and after travel, according to the CDC, and self-quarantine upon return.
Whether or not vaccinated, the CDC recommends that all travelers continue to take certain precautions to protect others, such as: B. wearing a mask in public as well as on trains, airplanes and buses; Keep 6 feet away from anyone not traveling with you; and use frequent hand washing or hand sanitizer that contains at least 60 percent alcohol.
“One of the big frustrations is that there isn’t a single model,” Leyden said, noting that state and local laws can vary significantly.
For example, New York developed
the Excelsior Pass, an app that enables people to digitally store and share vaccination records. “Companies and venues can scan and validate your passport to ensure you meet any COVID-19 vaccination or testing requirements for entry,” the New York State website states.
However, the governors of Arizona, Florida and Texas want to ban companies from requiring vaccination records. For example, Arizona Governor Doug Ducey
issue an implementing ordinance State and local authorities prohibited from asking for proof of vaccination. “Companies that have contracts with the state to provide services to the public are also unable to request documentation,” said the governor’s office. However, private companies are not prohibited from requesting proof of vaccination “in order to provide services or to facilitate entry”.
Leyden said employers should not only think about whether they can, but also whether they should require vaccination records. The vaccination status cannot play a role from a legal point of view in the context of the quarantine and testing requirements of a jurisdiction.
“If there is no distinction between vaccinated and unvaccinated travelers, what is your legitimate business reason for your request?” The best way to set guidelines is to base them on applicable laws and clearly explain to employees the rationale for the guidelines, Leyden recommended.
She warned against a static policy as recommendations and requirements change. “We’ll continue to see changes over the next few months so it’s important to be flexible and check back in.”
Testing and quarantine
Some locations
like Los Angeles County Angeles, require travelers to quarantine themselves if they are not fully vaccinated and have traveled outside of a certain geographic area. Los Angeles health officials also recommend that unvaccinated people get tested for COVID-19 before traveling.
Should an employer pay for testing and isolation time? “If travel is required by the employer, the prudent and prudent approach to any post-travel self-isolation is to compensate for that time,” said Phillips.
Miller noted that state or local law would give employees the right to paid vacation if they are unable to telework when they return from travel because they are quarantined or isolated based on recommendations from health officials have to.
“If there is no statutory right to paid leave, employers should be flexible and allow workers to take paid time off instead of making it mandatory,” she suggested.
Employers should remind employees traveling on business to continue to follow state and local public health guidelines and recommendations from the CDC, she said. “We don’t want COVID-19 vaccine passports to give a false sense of security that containment measures are no longer necessary.”
