Attempts by the employer to restrict employees’ vacation time to prevent exposure to COVID-19 are limited by laws and employee relationship considerations. Inquiries and information prior to departure are, however, permitted provided they are applied neutrally and consistently.

“Employers across the country are grappling with whether and how to change their vacation policies in the face of the coronavirus pandemic,” said Anthony Mingione, attorney at Blank Rome in New York City.

According to Nancy Gunzenhauser Popper, a lawyer at Epstein Becker Green in New York City, employers can generally reject requests for vacation at hotspots as they have to be quarantined later.

“Employers have wide discretion in approving or disapproving time off, and that won’t change during COVID-19,” said Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Florida.

“However, it is very difficult to effectively monitor where employees go when they are not working, and even more difficult to control,” Mingione said.

Additionally, the regulation of where employees go on vacation could conflict with some state laws protecting off-duty behavior and undermine morale, warned Carolyn Rashby, an attorney at Covington & Burling in San Francisco. Such laws exist in California, Colorado, Nevada, New York, and North Dakota, for example.

Requests before departure

Employers can generally require employees to inform them of travel plans. “However, employers should only need information necessary to determine if and for how long the employee is traveling outside of the state or internationally and should not ask for personal information,” Rashby said.

She also warned that employees teleworking during the pandemic should not be required to share travel plans with their employers. “The purpose of a travel policy would be to protect others in the workplace from exposure to COVID-19, and that concern does not exist when employees are teleworking,” she said.

Before making a pre-travel request, employers should clarify their use of the information and the purpose of the policy, Mingione said.

“Will there be any attempt to discourage employees from traveling to certain locations? This can create enforcement and moral issues,” he noted.

If a company with a pre-travel request policy does not ask employees at all levels about their plans, employers should expect allegations that the policy has been applied unfairly or in a discriminatory manner, Mingione warned.

Employers should consider changing vacation policies so that employees planning to travel during their vacation must give their supervisor or human resources advance notice of the details of their travel plans, including intended travel destinations and means of transport, said Paul Scheck, an attorney for Shutts & Bowen in Orlando, Florida.

Companies should also consider self-quarantining employees traveling in a country designated by the World Health Organization and / or the United States Centers for Disease Control and Prevention (CDC) to self-quarantine before going to work return, he added.

Clear communication

“Such a change in an employer’s current vacation policy should be clearly communicated to employees in advance,” said Scheck.

Employers should consider requiring employees who plan to travel to take their company laptops with them so they can work if they are stranded in another state or country or need to self-quarantine upon their return, Scheck added .

The policy should also specify whether employees who are required to self-quarantine must telework during the self-quarantine or use paid time off to cover this period.

An employee is likely not eligible for paid sick leave under the Families First Coronavirus Response Act (FFCRA) because they will have to quarantine themselves after the trip, said Suzanne Singer, an attorney at RumbergerKirk in Miami. “However, if the employee can get a doctor to issue a quarantine order, or if the employee develops symptoms, the employee may be eligible for FFCRA sick leave,” she said.

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Travel advice

Employees may be asked to sign a travel advisory before going on vacation, Singer suggested.

The travel advice may ask the employee to acknowledge that the employee may need to be quarantined himself upon return if he is traveling to an area designated as a hot spot. Recent CDC guidelines recommend quarantining yourself
for 14 days after possible exposure or 10 days after a positive test.

Singer said that an employer’s travel advisory may also read, “As your employer, we are responsible for providing a safe and healthy workplace. Avoid travel is recommended during the COVID-19 pandemic.”

The opinion should add that if an employee wishes to travel, the following guidelines, among others, should be followed:

  • Avoid close contact with others – keep a distance of at least two meters.
  • Clean your hands frequently – wash them with soap and water for at least 20 seconds.
  • Wear face covering in public.
  • Immediately notify the employer if you or a family member has been diagnosed with COVID-19.

Health examinations

“Employers should encourage employees to make good decisions, provide up-to-date information on guidelines and COVID-19 hotspots, and develop a plan for reintegrating employees into the workplace after a break,” Mingione said.

Include identification of recent travel destinations in regular health checkups that employers do, he suggested.

“If employees are used to providing this information before each work day, it will hopefully motivate them to make safe travel choices and help employers not to be overly involved in employees’ private lives,” he said.

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