There are now over 70 million confirmed cases of COVID-19 worldwide, and nearly 2 million deaths, including more than 300,000 in the United States. Federal, state and local authorities are recommending that travelers avoid nonessential travel and group gatherings, and several jurisdictions have imposed mandatory testing and quarantine requirements on out-of-state travelers. Notwithstanding this guidance, many people traveled and gathered over the Thanksgiving holidays, resulting in a spike in coronavirus cases. And it has been reported that nearly 90 million people plan to travel this week and next, which doubtless will result in another spike in cases. What does this mean for employers?

Employer Restrictions on Employee Conduct

Many jurisdictions have protections for lawful off-duty conduct, which generally includes personal travel. Such jurisdictions include California, Colorado and New York, among others. Notably, though, employees who flout mandatory requirements, such as mask protocols, limitations on the size of gatherings or quarantine restrictions, would not be engaged in lawful conduct, and employers can take appropriate action—including disciplinary action—to protect workplace safety. Most recently, this arose in the context of individuals posting photos of themselves on social media traveling, attending large Thanksgiving gatherings and failing to observe safety measures in violation of local restrictions; such conduct is not protected.

Employer Safety Protocols

Balanced against the right of employees to engage in lawful off-duty conduct is the employer’s obligation to provide a safe workplace and the general duty not to expose the public to hazards. While an employer generally cannot prohibit employees from engaging in personal travel, it can—and should—impose appropriate protocols for employees who do so, and advise employees in advance of the potential ramifications. Such protocols should be developed in accordance with guidance from the Centers for Disease Control and Prevention (CDC) and the World Health Organization, as well as guidelines and requirements issued by state and local governments and public health agencies, updating the protocols as circumstances change.

Employer protocols may include post-travel testing for COVID-19, imposing a self-quarantine period and requiring remote work where feasible. Employers should promulgate and disseminate a clear policy outlining the protocols. Companies also should request that employees who engage in personal travel notify a designated representative of their travel plans in advance, including destination(s) and timing. Employees should be instructed to notify the company if any unforeseen events occur, such as quarantine, illness or suspected exposure to COVID-19 while traveling.

Failing to implement appropriate safety policies can have drastic consequences. Allowing an infected employee to return to the workplace (before or after symptoms manifest) endangers employees, visitors and the general public and can cause an outbreak. Individuals who believe a company caused them to be exposed to COVID-19 may assert legal claims, including workers’ compensation claims by employees and lawsuits for negligence and similar claims by third parties. In addition, negative press, unwanted attention from governmental agencies and damage to the company’s goodwill and reputation can result from employees contracting COVID-19, even where the initial exposure may not have been work-related.

State and Local Requirements and Guidance

Many jurisdictions are implementing—and regularly modifying—mandates and guidance regarding travel. Some of these requirements may result in employees missing work due to mandatory quarantine periods if they have traveled over the holidays.

For instance, on Nov. 3, 2020, the New York Department of Health issued its updated “Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel” (“Interim Guidance”). The Interim Guidance provides that, subject to certain limited exceptions, all travelers entering New York from a noncontiguous state, or from a CDC Level 2 or 3 Travel Health Notice country, must self-quarantine for 14 days, in accordance with specified regulations. Alternatively, for individuals who traveled outside of New York for more than 24 hours, they must obtain testing within 72 hours prior to arrival in New York, and, upon arrival in New York, must quarantine according to Department of Health guidelines for a minimum of three days, and on the fourth day may seek a diagnostic test, which, if negative, allows them to exit quarantine.

On Dec. 22, 2020, the California Department of Public Health issued a Supplemental Order extending the Limited Stay At Home Order previously issued on Nov. 19, 2020, which imposes certain limits on gatherings and travel. Various counties in California are under a Regional Stay At Home Order, issued on Dec. 3, 2020 and supplemented on Dec. 6, which, among other things, precludes hotels and other lodging facilities from accepting or honoring out-of-state reservations for non-essential travel unless the reservation is for at least the minimum time period required for quarantine and the individuals will quarantine in the hotel or lodging facility through the quarantine period. Nor can hotels or other lodging facilities in a county under a Regional Stay At Home Order accept or honor in-state reservations for non-essential travel.

Pitkin County, Colorado, which includes Aspen and Snowmass, requires visitors to complete a health affidavit and submit a negative COVID-19 test result taken within 72 hours of arrival or face a mandatory 14-day quarantine. Various state and local jurisdictions such as the New England states, Alaska, Hawaii, New Mexico, Chicago and many others have similar mandatory or "strongly encouraged" testing and/or quarantine requirements. Employees who are traveling for the holidays may not have taken these quarantine periods and other restrictions into account when making their travel plans.

Paid Leave Considerations

Must time off for quarantine and/or testing be paid? The answer is “it depends.” The primary considerations are whether there is an “order” in place requiring quarantine or testing, a health care provider advised the employee to quarantine, and whether the employee is experiencing symptoms and seeking a diagnosis. Applicable laws, orders and regulations also may specify whether such time must be paid. (And of course, employees performing work during quarantine periods must be properly compensated.)

For instance, under the federal Families First Coronavirus Relief Act (FFCRA), employees of covered employers would be eligible for paid leave if they are subject to federal, state or local quarantine, have been advised by a provider to self-quarantine, or are experiencing coronavirus symptoms and are seeking a medical diagnosis. Asymptomatic employees would not be entitled to paid leave under the FFCRA merely because their employer required them to self-quarantine for a period of time before returning to work after personal travel.

Similarly, absent a federal, state or local order requiring quarantine, Colorado employees who are temporarily sidelined by their employer would not qualify for paid leave under the Colorado Healthy Families and Workplaces Act (HFWA) unless they either had symptoms and were seeking a diagnosis, or they had been advised by a health provider to quarantine or isolate due to a risk of COVID-19.

California’s COVID-19 Supplemental Paid Sick Leave, applicable to large employers and certain other specified businesses, contains criteria similar to the FFCRA and HFWA, but includes an additional entitlement to paid leave where employees are prohibited from working by their employer due to health concerns related to the potential transmission of COVID-19. (See Executive Order N-51-20.) Thus, an employee required by the employer to sit out a quarantine period after personal travel could be entitled to paid leave, subject to the terms of the paid sick leave law. The City of Los Angeles also provides paid sick leave for eligible employees where a public health official or health care provider “requires or recommends” that the employee self-quarantine to prevent the spread of COVID-19; an order or directive is not required.

Conversely, New York’s Interim Guidance “strongly discourages” nonessential travel, including vacationing and visiting family, and expressly states that any New York State resident who voluntarily travels to a noncontiguous state for nonbusiness travel will not be eligible for benefits under New York’s COVID-19 paid sick leave law. Note, though, that the Interim Guidance, while styled as “guidance,” contains “mandatory” requirements; it therefore likely would qualify as a “quarantine order” for purposes of paid leave entitlement under the federal Families First Coronavirus Relief Act (FFCRA).

Takeaways

Employers must address employee personal travel issues and the concomitant risk of infection in the workplace, but should approach those issues with caution. Companies are advised to establish policies in conjunction with legal counsel who can assist in carefully crafting such policies to ensure compliance with applicable laws and guidance. Policies should be regularly reviewed and updated to reflect the ever-changing legal landscape. This includes workplace safety protocols and best practices, state and local mandates regarding travel, and the interplay with paid leave laws, which, as outlined above, can involve a complex and nuanced analysis.