Are you legally allowed to make someone quarantine? What can you do when you have employees who have traveled? Our HR professionals will questions about requiring employees to quarantine. Many states and localities have issued general guidance, as well as industry-specific guidance, for workplace safety during the COVID-19 pandemic. Ensuring you are following the latest guidance is imperative not just to mitigate the risk of a claim, but also to ensure you are protecting the health of your employees and customers.
This is a fictitious situation to help answer those questions. Felicity is a server at The Burger Barn. This past Christmas her boyfriend surprised her with a week long vacation which he booked for August 2020. Felicity immediately put in for vacation so she would be sure to have the time off. Not knowing when he booked the trip that a global pandemic would happen and the US would still be trying to get transmission under control for months on end, Felicity’s boyfriend prepaid for everything and now he can’t get any refunds. Felicity and her boyfriend decide to still make the trip. After all, they’ve been looking forward to this trip for months, have cabin-fever from being cooped up in their house, states have been reopening, and they don’t want to throw away her boyfriend’s hard-earned money. Besides, they’ll practice excellent hygiene, wear masks, and socially distance as much as possible; plus, they’re young and healthy so are not too concerned if they ultimately get the virus.
Felicity’s manager, Brooke, is concerned about her still going on vacation during the pandemic. As a server, it is hard to socially distance from coworkers and customers, and Felicity can’t very well work remotely. Brooke knows many states have issued public health orders requiring individuals coming into the state from certain areas experiencing high community transmission of the virus to self-quarantine for 14 days when they arrive, but Brooke’s state isn’t one of them. She wants to make Felicity stay away from the restaurant after her vacation but is not sure she can do that. Brooke calls our HR Professionals for advice.
Our HR Professional tells Brooke yes, in general, employers can tailor their vacation policies as they see fit, if it is implemented consistently across the board without regard to the employee’s position or any protected classes. Given the current situation with the COVID-19 pandemic, it is reasonable for employers to institute a policy requiring employees to stay away from the workplace for a 14-day period after traveling.
If you choose to implement such a policy, you must be prepared to enforce it consistently. If you do not, your actions will appear arbitrary and even discriminatory under some circumstances. Inconsistent enforcement will increase employee resentment, which in turn can increase the risk of a claim over the policy itself or other perceived wrongdoings in the workplace.
In addition, it is recommended you confirm whether your state or local public health department orders require individuals to quarantine after traveling outside your area. As noted in the question above, many states now require or strongly recommend individuals to self quarantine when they arrive in the state if they came from areas with high community
If your state or local orders indicate individuals are subject to a mandatory need to self quarantine, then your employee may be eligible for paid leave under the Families First Coronavirus Response Act for the qualifying event “the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”, or similar state-provided COVID-19 leave. However, many states have also implemented policies prohibiting their citizens from using state-provided paid COVID-19 leave if they voluntarily travel to high risk areas. It is important you consult your state and local health orders to determine if a mandatory quarantine applies to your employees after travel and whether they are then prevented from using paid leave for their quarantine period.
While employers are permitted to require a doctor’s note when an employee has been away from the workplace, we would not recommend having this as part of your policy requiring employees to stay away for 14 days. Health care providers may be too busy and visiting health care facilities could expose employees to the virus. According to the EEOC:
May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify an individual does not have the pandemic virus.
It is important to note requiring employees returning from travel to stay away from the workplace for 14 days should be part of a broader infectious disease preparedness and response plan you have in place. The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, 29 USC 654(a)(1), requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards causing or are likely to cause death or serious physical harm.” What an employer needs to do to satisfy the General Duty Clause will vary depending on the employer’s industry and risk posed. For example, healthcare workers will have greater risk of exposure because they work directly with the sick. OSHA’s COVID-19 guidelines provide recommendations to assist employers with risk assessment and implementing prevention control, which employers must tailor to their specific industries.
OSHA’s guidelines set forth the following general requirements for all employers:
- Develop an infectious disease preparedness and response plan; • Prepare to implement basic infection prevention measures such as promoting proper hygiene and implementing routine cleaning and disinfecting practices;
- Develop policies and procedures for prompt identification and isolation of sick people, if appropriate;
- Develop, implement, and communicate about workplace flexibilities and protections;
- Implement workplace controls, ranging from physical barriers to protect against the spread of COVID-19 to providing personal protection equipment.
We recommend you review the OSHA’s COVID-19 guidelines and CDC guidance to ensure you have taken appropriate steps to mitigate the risk of exposure in the workplace. We also recommend you check your state OSHA guidelines, as well as your state and local public health orders to ensure you are complying with all requirements for reducing the transmission of COVID-19 in your workplace. Many states and localities have issued general guidance, as well as industry-specific guidance, for workplace safety during the COVID-19 pandemic. Ensuring you are following the latest guidance is imperative not just to mitigate the risk of a claim, but also to ensure you are protecting the health of your employees and customers. Our HR Professionals are standing by to help you when the time comes.