Employer Coercion Or Employee Choice? The Ethical Dilemma Of Mandatory Travel To Disease-Infected Areas

Employees have certain rights when it comes to travelling to disease-infected areas. In the US, the Americans with Disabilities Act (ADA) and the Rehabilitation Act offer protections for employees with disabilities. The ADA states that employers can require employees to take a COVID-19 viral test if it is job-related and consistent with business necessity. Additionally, the ADA prohibits employers from requiring employees to be vaccinated against COVID-19, but they can encourage employees and their family members to get vaccinated.

Employers can ask employees to stay home if they have COVID-19 or display symptoms and must pay employees for this time. However, if an employee is actually sick and there is no disability benefit plan in place, employers are not required to pay employees for their time off.

If an employee is fired as a result of an absence due to illness, they have stronger rights. Disability, or even the employer's apprehension of disability, has human rights protection. If an employer fires an employee because they took time off to ensure their coworkers were not infected, a human rights tribunal would provide the employee with reinstatement, back pay, and additional damages for the violation of their human rights.

Employees also have the right to refuse to attend the workplace if they believe others might be infected. In this case, a government health and safety inspector would need to determine whether there is a realistic danger.

An employer can require an employee to stay home if they have COVID-19 or symptoms of the disease

The Americans with Disabilities Act (ADA) allows employers to ask employees if they have COVID-19, common symptoms of COVID-19 as identified by the CDC, or have been tested for COVID-19. If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19, should stay home. The ADA does not prevent employers from following CDC advice.

If an employee is infected with COVID-19 and has symptoms, they must be excluded from the workplace until:

• 24 hours have passed with no fever, without the use of fever-reducing medications.
• Their symptoms are mild and improving.

Employees infected with COVID-19 who do not have symptoms do not need to be excluded. If symptoms develop, the above criteria will apply.

An employer can require an employee to take a COVID-19 test

The EEOC has deemed COVID-19 a "direct threat" due to its highly contagious nature, meaning that individuals with COVID-19 generally don't have to be accommodated in the workplace. This has opened the door to coronavirus testing in the workplace. However, employers do not have unlimited discretion when it comes to COVID-19 testing. If an employer requires an employee to undergo viral testing, they must:

• Comply with federal and state confidentiality laws
• Ensure that testing is accurate and reliable
• Stay up to date on federal and state COVID-19 guidance
• Consider the incidence of false-positive and false-negative tests
• Understand that an employee who tests negative could test positive later

Additionally, if an employer requires an employee to obtain a COVID-19 test, they must also pay for the time it takes for the testing, including travel time, as this would constitute "hours worked". The term "hours worked" means the time during which a worker is subject to the control of an employer and includes all the time the worker is suffered or permitted to work, whether or not required to do so.

An employer can require an employee to get vaccinated

In general, employers can require employees to be vaccinated against COVID-19 if they are entering the workplace. This is similar to pre-pandemic vaccine mandates, such as the requirement to get a flu vaccine. However, there are some exceptions and other considerations to keep in mind.

Firstly, it is important to note that some state laws prohibit employers from mandating vaccines as a condition of employment. In states where vaccine mandates are not banned, employers must ensure that their vaccine policies are applied neutrally to all employees and job applicants, in accordance with Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).

Secondly, employers must allow employees to request reasonable accommodations under the ADA or religious accommodations under Title VII. For example, some states require employers to grant exemptions beyond the religious and medical exemptions required by federal law, such as exemptions based on employees' COVID-19 "immunity".

Thirdly, when implementing a vaccine mandate, employers should make it clear to potential candidates from the beginning that vaccination is required. Job postings can include this requirement along with any other employment requirements, such as passing a background check or drug test. It is also important to include information on how to request an accommodation and to define the timeframe in which a new hire must be fully vaccinated.

Additionally, employers should avoid making medical inquiries prior to an offer of employment and should not collect proof of vaccination until after an offer has been accepted. Once documentation is received, it should be maintained confidentially.

Finally, it is worth noting that while most employee challenges to employer vaccination requirements have failed, these challenges tend to succeed when the employer does not properly consider accommodation requests or applies the policy or grants exemptions in a non-neutral manner. Therefore, employers should ensure they have properly documented employees' accommodation requests and resulting interactions.

An employer can enforce quarantine

In the case of COVID-19, an employer can require an employee to quarantine if they have been exposed to the virus or are experiencing symptoms. This is because COVID-19 is considered a serious health condition that poses a direct threat to the workplace. Additionally, employers may offer alternative work arrangements, such as teleworking, and additional paid time off to employees during a quarantine period if they are unable to work remotely.

However, it is important to note that employers cannot single out employees to work from home during a quarantine. They must treat all employees equally and provide the same opportunities for remote work or alternative arrangements.

Furthermore, while federal law does not require employers to provide paid sick leave during a quarantine, some states, such as Maine, Maryland, New Jersey, New Mexico, South Carolina, and Texas, have laws that prevent employers from firing any employee who is quarantined by the state. Additionally, the Families First Coronavirus Response Act (FFCRA) provided employees of companies with fewer than 500 employees with up to 12 weeks of leave, with 10 weeks being paid at two-thirds of their normal rate. This act expired on December 31, 2020, but employers could voluntarily continue providing paid leave until March 31, 2021, and receive tax credits.

In summary, while an employer can enforce quarantine on their employees in certain circumstances, they must also provide accommodations and adhere to federal and state laws regarding paid leave and employee protection.

An employer can refuse to pay an employee for the period off work if the travel is voluntary

An employer cannot force an employee to travel for work if there is a risk to the employee's health and well-being. If an employee's job profile includes travel as a significant aspect, refusing to travel may result in the loss of their job. However, if an employee has a legitimate concern, such as a medical condition that puts them or the company at risk, they have the right to refuse to travel, even if their contract specifies it.

In the context of the COVID-19 pandemic, employees may not want to travel for work, especially if they haven't received both vaccine doses. An employer has a duty of care to provide a safe and healthy work environment, and this obligation extends to having a plan in place when employees travel for business.

Employers should update their corporate travel policies, risk management policies, and FAQs to comply with workplace safety guidelines, federal law, and state restrictions on travel. Here are some factors to consider:

Federal, State, and Local Travel Requirements

Address how you will account for constantly changing stay-at-home, shelter-in-place, and mandatory self-quarantine orders when making travel plans.

Necessity of the Business Trip

Create a framework to weigh the necessity of the trip, including employee health exemptions, guidelines for collecting employee medical information, and an assessment of existing employment contracts.

Testing and Isolation Requirements

Establish concrete processes for travel-related COVID-19 testing, isolation, test results, and medical examination requirements. Commit to paying for COVID-19 tests for employees before and after travel, regardless of symptoms.

Provision of Personal Protective Equipment

Supplying masks, hand sanitiser, gloves, face coverings, and disinfecting wipes for employees during travel reminds them that their safety is a priority.

Procedure if an Employee Contracts COVID-19 During Business Travel

Establish a procedure for employees who become infected with COVID-19 during a business trip, as they may be able to make a compensation claim for workers' benefits and will need to take sick leave.

While there is no definitive answer in the Department of Labor's Occupational Safety and Health Act (OSHA) regarding an employee's right to refuse travel, it would be inadvisable for an employer to fire an employee for refusing to travel due to the pandemic. Employees could take their case to court under Section 11 of the OSH Act, claiming retaliation.

Instead, employers should seek amicable alternatives, such as selecting another employee for the trip, making alternative arrangements, or delaying the trip until the situation improves.

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