In the world before the COVID-19 pandemic, business travel was a critical function for countless employees in a wide range of industries. Since the onset of the pandemic, and the attendant changes to otherwise normal business operations, employers have had to revisit business travel and rely on videoconferencing and other remote workplace tools to replace the in person meetings and interactions that often times drive business travel. Now, as states and cities reopen in an attempt to establish a new normal, many employers are considering restarting business travel. In doing so, employers face competing obligations including those to keep their employees safe, to comply with an evolving set of return to work laws, and to drive businesses growth in a challenging economy.
This summary aims to identify the underlying legal considerations for business travel during the pandemic, while also providing an overview of practical issues for employers to consider if and when they begin to require their workers to resume business travel, and a non-exhaustive list of best practices employers should consider in doing so.
Laws Restricting Non-Residents Upon Entry
Brazil, China, Iran, and most European countries - including the United Kingdom, Ireland, and members of the European Union - now place heavy restrictions upon entry from the United States. Likewise, several states and municipalities within the United States - including Alaska, Connecticut, New York, and New Jersey - have issued travel advisories requiring, among other things, individuals arriving from more than a dozen states to quarantine for fourteen (14) days upon entry into their state. This means that employees leaving or returning from business travel may, depending on their destination or layover stops or their home, face extended quarantines before or after traveling, along with other restrictions while traveling. Accordingly, employers should consider:
Possible employee quarantines or other restrictions upon entering one or more location(s) they are set to visit during their anticipated business travel.
Possible employee quarantines or other restrictions upon returning from business travel.
Productivity loss occasioned by quarantines or other restrictions versus the benefit of business travel.
Laws Restricting Business Related Activity and/or Requiring Affirmative COVID-19 Mitigation Measures
The Center for Disease Control has provided federal, state, and local governments, as well as employers and individuals, with guidance on which activities should be permitted during different stages of the COVID-19 pandemic. However, despite the uniform guidance from the CDC, states have adopted a wide range of different measures on what employers and employees alike can and cannot do during the COVID-19 pandemic. For example, some states now permit “non-essential” employers to operate at full capacity and welcome visitors without occupancy or other restrictions while other states are still under more restrictive stay at home orders which only permit some but not all employers to operate as normal. Further, some states regulate what individuals must or should do when in public places, with some requiring individuals to wear face coverings and maintain social distance at some or all times while other states only suggest but do not require such measures. Moreover, some states have permitted cities and counties to move slower or faster than the state at large in terms of reopening such that counties within the same state may have differing restrictions on business operations and requirements for individuals. Effectively, then, employees engaged in business travel will face a wide range of restrictions on what business they may conduct and how they should conduct that business.
With this in mind, employers contemplating business travel should consider:
The goals for each business trip (e.g., in person meeting with a client, touring a client site or vendor facility, etc.) and how the goals interact with state or local prohibitions or restrictions.
Steps that a traveling employee will have to take to comply with state or local laws during their business trip.
The willingness of actual or potential clients, vendors, or patrons to welcome a traveling employee.
Any measures actual or potential clients, vendors, or patrons are taking to help contain the spread of COVID-19 and otherwise comply with state or local restrictions or prohibitions, and whether a traveling employee will be required - by governments or private parties - to comply with those measures.
Federal and State Wage and Hour Laws
The Fair Labor Standards Act (FLSA) and other state and local wage and hour laws present a wide range of provisions effecting business travel which have only been highlighted by the COVID-19 pandemic. For example, the FLSA and state and local wage and hour laws impact, to varying degrees, the circumstances under which hourly employees must be paid for, among other things, traveling, waiting, and putting on and taking off equipment. Likewise, wage and hour laws also address whether and how employees must be reimbursed for business expenses. This directly impacts business travel during COVID-19 as employees will likely spend time putting on and taking off PPE such as face coverings and going through increased security measures with the TSA or other screening officials, and may seek reimbursement for PPE required in the locations they visit.
As a result of the impact of wage and hour laws, employers may, in analyzing business travel, consider:
Paying for or reimbursing employees for things like PPE, travel cancelation or change expenses (whether trains, planes, or automobiles), special fees or additional costs related to the use of sanitary and safe hotel or other accommodations, and the cost of technology necessary to work performed, for instance, during travel delays.
Tracking time spent traveling and breaking that time down to individual activities performed during travel (e.g., working while waiting, waiting, going through security lines/screening, etc.).
Americans with Disabilities Act and State Analogs
The Americans with Disabilities Act (ADA) - along with many state analogs - protects individuals with disabilities who are qualified to perform the essential functions of their job with or without reasonable accommodation. On the federal level, employers must provide reasonable accommodation to a known physical or mental limitation of a qualified individual with a disability, unless to do so would impose an undue hardship on business operations. Further, under the ADA, it is unlawful to require a medical examination or ask an employee questions about disability unless the employer can show that these requirements are job-related and necessary to conduct business.
In light of the above, employers generally have wide discretion to identify the duties and requirements of a particular role and to discipline employees who fail to perform those duties. Assuming no prohibitions by governmental authorities, employers can require employees to travel to non-restricted areas, especially if traveling is necessary to perform his/her essential job duties. Employers must consider whether an employee’s refusal to travel warrants a reasonable accommodation if the employee is immune-compromised or even has a mental health condition that impacts sensitivity to concerns related to the pandemic. Indeed, consistent with Equal Employment Opportunity Commission (EEOC) guidance on the ADA and COVID-19, some state executive orders and directives regarding COVID-19 and business reopenings have specifically suggested that employers should accommodate requests for teleworking.
Given the ADA and state analogs, along with guidance from federal, state, and local agencies and entities, employers should consider:
That one or more employees who do not want to resume business travel may need accommodations.
That teleworking, depending on the necessity of business travel and the success of any measures the employer used to handle the lack of business travel earlier during the COVID-19 pandemic, may be a reasonable accommodation.
Training frontline supervisors and managers, along with human resources employees, on the intersection between COVID-19 and reasonable accommodations so they can recognize events triggering the obligation to provide reasonable accommodations.
Family and Medical Leave Act and State Analogs
The Family and Medical Leave Act (FMLA) - as well as state analogs - requires employers to provide up to twelve (12) weeks of job protected leave for qualifying employees when those employees require leave to attend to their own serious medical condition, or care for a family member with a serious medical condition. Consistent with the Department of Labor (DOL) guidelines regarding COVID-19 and the FMLA, Employees with COVID-19, with family members with COVID-19, or who themselves or whose family member suffer from serious health conditions which may exacerbate the effects of COVID-19 may be entitled to job protected leave. Given the risks associated with work-related travel, employees may seek FMLA leave as an alternative to resuming such travel. Accordingly, businesses should consider:
That one or more employees who do not want to resume business travel may request or be entitled to take FMLA leave to care for themselves or others.
Training frontline supervisors and managers, along with human resources employees, on the intersection between COVID-19 and FMLA so they can recognize events triggering the obligation to inform employees about FMLA leave.
Occupational Safety and Health Act
The Occupational Safety and Health Act (OSHA) contains a General Duty Clause that requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to . . . employees.” Employees may only refuse to work if they believe they are in imminent danger, which includes “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures other provided by this Act.” In light of CDC guidance regarding the dangers of traveling during the pandemic, requiring employees to engage in business travel to severely impacted countries or other areas that experience an increase in COVID-19 infections or become subject to travel restrictions invokes the employer’s obligation under the General Duty Clause. Practical consideration may be given then to:
The COVID-19 infection and hospitalization rates at the locations where employees are asked to travel to.
The mitigation measures that the site locations are taking to address and contain the spread of COVID-19.
The mitigation measures the employee is expected to take to address and contain the spread of COVID-19 during their business travel.
National Labor Relations Act
Unions may use COVID-19 related workplace conditions as an inroad to unionizing workplaces particularly where there is employee dissatisfaction with working conditions including work-related travel. In addition, Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to engage in concerted protected activity which likely includes the right to discuss the terms and conditions of their workplace (like requirements for work-related travel) with others. Accordingly, employee discontent with resuming work-related travel may spark unionization efforts as well as result in unfair labor practices should employers choose to fire or discipline employees who do not want to reengage in business travel. Employers, then, should consider:
Communicating the need for business travel.
Allowing, rather than requiring, business travel.
Directly addressing employee concerns with business travel.
Training frontline managers and supervisors, as well as human resources, about the NLRA’s impact on unionized and non-unionized workplaces alike.
Workers’ Compensation and Other Potential Liability for Spreading the Virus
Should an employee contract COVID-19 while traveling for business, then that employee could be eligible for workers’ compensation benefits. An employee’s eligibility, generally speaking, will vary according to applicable state law. The question normally turns on the question of whether the employee can establish that an injury or harm is “compensable” under relevant state law. Diseases allegedly contracted at work raise complicated issues, with the laws of some states requiring proof that the disease was contracted while the employee was actually working while traveling for business. Other states have adopted a “strict liability” approach, under which a disease is deemed compensable if contracted during business travel, regardless of whether the employee was actually “working” when s/he contracted the disease.
Some states have passed or are contemplating legislation that would limit or eliminate business or individual liability for exposing others to COVID-19. As a general rule, however, there is currently no express protection under the law against a third party suing a business because the third party contracted the virus from one of the business’s employees. Accordingly, employers should be aware of the risk for third party liability should an employee on work-related travel spread COVID-19 to others, including actual or potential clients, vendors, and patrons.
With this in mind, employers should consider the risk of :
The COVID-19 infection and hospitalization rates at the locations where employees are asked to travel.
The mitigation measures that relevant locations - including, but not limited to, the actual or potential client, vendor, or patron the employee may be visiting - are taking to address and contain the spread of COVID-19.
The mitigation measures the employee is expected to take to address and contain the spread of COVID-19 during their business travel.
Best Practices - Responding to Employee Concerns About COVID-19 and Business Travel
Though no strict requirement to do so, COVID-19 highlights the importance of responding to employee concerns about COVID-19 and business travel. Employees may and likely will respond to the COVID-19 pandemic with anxiety about the workplace generally and this will only be highlighted by the prospect of business travel. Accordingly, employers should consider adopting the following best practices in dealing with these concerns:
Communicating the need for business travel along with any mitigation measures being taken to address the spread of COVID-19.
Listening and responding to any concerns as part of an existing broader open-door policy or otherwise.
Analyzing whether and how those concerns may be addressed with additional/different mitigation measures to the extent practicable.
Referring employees to any Employee Assistance Program that may be available.
Employers face a tangled web of differing federal, state, and local laws, regulations, and guidance related to COVID-19, many of which will impact their ability to and the circumstances under which they may reinstitute workplace travel. Though there is not a “one size fits all” approach or right answer when addressing whether and how to return workers to business travel, there are practical considerations which can assist businesses in doing so. Further, by addressing those practical considerations head-on and considering adopting best practices, employers can more easily anticipate and adapt to the legal landscape regarding COVID-19 and business travel.