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This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2021, authored by attorney Regina Young. The series was featured in Arkansas Business.
Last month Bill Gates predicted that more than 50 percent of business travel and more than 30% of days in the office will end permanently due to COVID-19.
Time will tell how business travel and remote work will ultimately shake out post-pandemic, but travel has already resumed for some, and there are considerations employers should keep in mind about employee business and personal travel including employee safety and claim avoidance.
Business Travel Considerations
At the outset, employers should carefully weigh whether travel is essential to company operations.
Some employees may be uncomfortable with travel due to underlying health conditions of their own or of someone they live with and others may see travel as no longer necessary, because from their perspective, they have been able to do their job just as effectively without traveling. The company should be prepared to address employees who are reticent about a return to business travel with proof that travel was an essential job function pre-pandemic, and that resumption of travel is essential to company operations.
Of course, employee safety must be the No. 1 priority, and employers should have a plan in place to keep employees who travel employees as safe as possible. This plan may include company paid COVID-19 testing before and after travel, and the supplying of personal protective equipment kit (masks, hand sanitizer, gloves, sanitizing wipes) at the company’s expense. Afterwards, conduct a post-travel debriefing on possible exposure and discuss work from home options or self-quarantine post-travel, if necessary.
But even with thoughtful business analysis and careful planning, employers may still face claims of failure to accommodate a disability if an employee’s request to be excused from travel is denied. Assuming that you have determined that business travel is an essential job function and essential to company operations, a leave of absence may be an appropriate accommodation in some circumstances.
Employers should also be aware of possible workers’ compensation claims if an employee becomes infected during business travel. In Arkansas, if an employee can establish that he contracted COVID-19 on a business trip, he may be eligible for a workers’ compensation benefits.
Additionally, you should research state and local travel requirements as part of the business travel COVID-19 preparedness plan. While there are no travel restrictions or stay-at-home orders in Arkansas, some cities and states are reinstating state-at-home orders that had been previously lifted and/or requiring individuals who have traveled from certain states to quarantine. You do not want to put your employee on an out-of-state flight, only for her to get there and not be able to meet with the client.
Personal Travel Considerations
What about employee personal travel? Can employers require its employees to report personal travel? Generally, the answer is yes, but employers should only require disclosure of out-of-state or international travel and the length of time. Personal questions should be avoided.
If a pre-travel inquiry policy is implemented, employees at all levels should be required to disclose their plains. Otherwise, the company risks exposure to claims of unfair application of the policy or discrimination. Also, since the primary purpose of a travel policy is to protect other employees, remote workers should not be required to disclose personal travel. The policy should specify that advance notice about travel plans should be given to supervisors or HR, and the company should take the opportunity to remind the employee of the company’s responsibility to provide a safe workplace, to encourage the employee to take precautions against exposure, and to advise that self-quarantine might be required on return.
A pre-travel policy should specify if remote work is available for employees required to self-quarantine post-travel. If remote work is not an option, the policy should state if paid time off is available to cover the period of time of self-quarantine.
Paid sick leave for post-travel self-quarantine under the Families First Coronavirus Response Act (which expires on Dec. 31) is likely not available to employees unless the employee has developed symptoms or tests positive for COVID-19 or a government order requires quarantine.
Since it will take many months (maybe a year) to get everyone vaccinated, employers will have to continue to be nimble and flexible while navigating the business and personal travel landscape. Having protocols in place that are neutrally and uniformly enforced will not only help keep employees safe, but will help avoid costly claims.