Law360 (July 31, 2020, 5:57 PM EDT) -- Business trips were one of the first things companies clamped down on to help mitigate the spread of COVID-19, and will likely be among the last things to return to normal, experts say.
When news of an outbreak of a potentially deadly virus in China started making its way to employers' ears in January, one of the first steps companies took was to cancel trips to the affected region and require returning travelers to stay away from the office for a period of time, well before stay-at-home and quarantine orders had been issued by American public health officials.
After the virus spread within the United States, stay-at-home orders and quarantine restrictions made even domestic business travel difficult and prompted businesses to lean more than ever on videoconferencing and other virtual methods of communication. Even when those restrictions loosen, it is likely that employers' travel policies won't look the same for quite a while as the threat of COVID-19 still lingers, attorneys say.
"We've seen a large change in business travel over the year. This started at the outset in January and February where there were limitations on business travel to China," said Alka Ramchandani-Raj of Littler Mendelson PC.
"What we have right now is a little bit of a different scenario because international travel is risky, but national travel also may be risky because we've got so many hot spots within the United States," she added. "So it's very important that employers do the same thing but kind of on a different level than they were doing initially."
Here, Law360 looks at what employers need to know about business travel as the pandemic persists.
Put Travel Plans Under a Microscope
Before the pandemic, business travel for many companies was a standard way of life that was often accompanied by simple processes for workers to make requests and for those requests to be approved. But the risks associated with the coronavirus have forced employers to take a closer look at their travel practices and put much more detailed policies in place to stave off legal claims down the road.
"Companies are going to implement — to the extent that they have not already implemented — very detailed travel policies [for] when travel is going to become necessary for business," said Alex Polishuk of Polsinelli PC, who noted that those travel policies "are either going to mirror or exceed the guidelines" set by the Centers for Disease Control and Prevention and the World Health Organization.
"To the extent that employees will have to travel for business, they'll probably be informed about potential post-travel quarantine if they are returning from an area with ongoing COVID-19 outbreaks, [and] they're probably going to be educated with respect to the risks of traveling nationally or internationally," Polishuk said.
Employers may also rely on self-assessments from returning employees regarding whether they have symptoms that can be indicators of COVID-19 and enhance employee screenings as more workers travel if they have physical worksites open, according to Polishuk.
Ramchandani-Raj also said that employers made decisions about travel in the early days of the public health crisis based upon information from the WHO regarding things like case numbers in certain locations and travel advisories to those places. But while such advisories should still factor into employers' decision-making, they now have to "make a policy that's neutral on its face" and takes into account the fact that coronavirus hot spots may shift over time, she said.
"So they have to create a policy that addresses that they don't want people traveling to hot zones — it should address hot zones, define what hot zones are [and] what are the parameters of the hot zones," Ramchandani-Raj said, adding that policies should be based on objective data.
Moreover, travel policies should outline the type of work-related trips that are considered approved travel, she said.
For example, an employee may be allowed to travel from one company facility to another because it's easier for a business to take precautionary measures in that circumstance, whereas riskier trips such as conferences that may not be essential and where an employer has less control over the environment are a no-go.
"The employer needs to make that decision about what risks they're willing to take for their employees to travel and they should evaluate a lot of these factors about what is essential and what is not, and what is risk-worthy and what is not risk-worthy," Ramchandani-Raj said.
Avoid a Cookie-Cutter Approach
Benjamin Han of Seyfarth Shaw LLP noted that the push to restart work-related travel will vary widely across industries, with some not relying heavily on travel while others, like sales or consulting, have a heavy travel component.
But decisions about how much travel is going to be allowed will largely hinge on the "type of industry and focus that these companies have," Han said, with some employees being "hesitant to start traveling again while others are eager to get back into planes and hotels even with all the risks around them."
"I think when your business is composed of those types of employees, traveling is going to get kick-started as soon as is reasonably feasible to keep everyone safe, whereas other business travel that was a little more preferable but not necessary, I think [there's] going to be a little bit of scaling back in those particular industries with those types of employees," Han said.
If an employee balks at a travel assignment or expresses concerns about going, Han noted that the Americans with Disabilities Act will be the main statute that employers should be mindful of.
For example, if a worker is immunocompromised or has a mental health condition that is exacerbated because of the coronavirus, employers should tread carefully to avoid being too rigid in their demands.
"Employers are generally free to require employees to travel for business, but in terms of traveling amid a pandemic, the ADA plays a role," Han said. "In this situation, flexibility appears to be the main policy at this point. So employers must consider in a situation like that whether a reasonable accommodation is required by engaging in the interactive process with the employee."
Make Clear What Qualifies as 'Essential' Travel
While business travel has been and will likely continue to be significantly curtailed, some trips can't be avoided. In deciding which events fit the bill, businesses need to have a plan in place for distinguishing between business travel that isn't really needed and the sort of trips that are of paramount importance.
"There's a multitude of different types of liability out there, [but] the main one that I think employers really need to think about is definitely evaluating essential versus nonessential travel to make sure they're assessing that risk properly and giving best practices, if employees do have to travel, about how to travel safely," Ramchandani-Raj said.
When deciding whether business travel is essential, Polishuk said that employers should factor into their decisions whether remote conferencing is feasible for the relevant work.
"Practically speaking, it's going to be whether or not the business at hand can or should be done via videoconferencing," Polishuk said. "The capability of companies and individuals to engage in videoconferencing now is very good, and so to the extent that any sort of business can be done via video, employers should consider that."
Don't Overlook Patchwork of State Restrictions
Besides internal policies, employers also have to be wary of the many state restrictions that have been put in place as governors try to tamp down local outbreaks. One way they are doing that is by enacting restrictions on travelers entering a state.
New York, for example, currently requires individuals who arrive from about three dozen states as well as Washington, D.C., and Puerto Rico to quarantine for 14 days and complete health forms upon arrival at airports or face monetary penalties.
"Employers have been doing quite a few different things on how to address this patchwork of different guidances and laws," Han said, noting that the "safest and easiest route" for employers "has been to minimize business travel altogether, to invest in and adopt videoconferencing and other remote work tools and to also make business travel allowable as opposed to just required."
Like New York, restrictions elsewhere on out-of-state or international travelers often include quarantines, even though compliance and enforcement of those rules can vary widely between states, according to Han.
For employers, those policies mean that employees traveling for business may have to quarantine for a period of time on either end of their business trip — something that employers should keep in mind when they assess travel requests.
"A big consideration is going to be employees traveling for business facing a potential two-week quarantine before and possibly even after their business trip," Han said.
--Editing by Alanna Weissman.
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