Your Rights in an Extraordinary Pandemic Situation
Thanks to the pandemic, the last year has been exhausting. Many have faced furloughs, layoffs, extended separation from loved ones, and even unthinkable losses as COVID-19 spreads throughout the country and directly impacts the operations of countless industries. As the holidays arrive and you get some much-needed time off, you may be hoping to travel home or just get away for a while. After all, you have followed local government guidelines about social distancing, masking, and sanitizing. Could there really be all that much risk, especially if you keep being careful?
The reality is the COVID-19 pandemic has entered an unfortunate “winter wave,” with case numbers rising throughout the United States and acutely in California. Many government officials have pleaded with the public to avoid any and all nonessential travel, including trips to see friends and family for the holidays. As of now, these recommendations are not actual mandates or legally enforceable. Airports are still operating, and you can take a flight just about anywhere in the country (though in some states, you will need to quarantine upon arrival).
Given these conditions, you might be wondering if your boss has any ability to restrict your travel plans, especially if you work in a position that cannot be accomplished remotely. Below, we cover the tricky territory of employee rights to travel in the midst of a pandemic.
Can My Boss Ask About My Travel Plans?
The short answer is yes, your boss is not breaking the law by asking about your travel plans. The caveat is that the boss must treat all employees equally, meaning they cannot specifically target or harass someone by probing their travel itinerary.
The inquiry must be out of some business necessity. This means that your boss cannot simply ask in their capacity as your employer just because they are curious. They must have a business-oriented reason for making the request for information. During COVID-19, there is generally a sound justification for the question: Businesses are trying to determine the possibility of the virus being brought into the workplace following travel.
In other words, your boss is most likely well within their rights if they are asking their entire workforce about their travel plans for the holidays or about any other interstate travel in the coming months. The question is most likely not a trick question or a trap. They may genuinely and understandably be attempting to assess the risk profile of the workplace once everyone returns.
Can My Boss Prevent Me from Traveling?
The short answer here is no, they cannot. California has an off-duty conduct law that precludes your boss from interfering with your actions when you are not on the clock. These laws, present in many worker-friendly states, are typically used to avoid punitive retaliation for political activity. Given the statute’s broad language, however, it is conceivable that these laws could also apply to any attempt to restrict travel on personal time.
With that said, your boss is within their legal rights to understand the extent of your travel and even discourage it from taking place in extraordinary circumstances. For example, your employer may mandate that employees notify management if they plan to travel out of state or to a COVID-19 “hotspot” – generally any area with rising cases and/or uncontrolled spread.
Keep in mind that your employer has a legal obligation to maintain a safe workplace under the Occupational Safety and Health Administration’s (OSHA’s) guidelines. This, in theory, permits them to exercise more scrutiny in requesting specifics of travel plans, so long as the inquiries are not discriminatory or target a particular employee.
Your employer is within their rights to remind you and other employees of local, state, and federal safety guidelines regarding travel and other behaviors during the COVID-19 pandemic. This includes strongly recommending that you avoid all nonessential travel. They are also within their rights to inform you that an outbreak of cases at a physical facility will likely result in its being shutdown if local guidelines consequently mandate a closure. While this may seem like a threat to discourage travel, it is lawfully permissible so long as the message is delivered in a non-targeted manner and is intended to educate employees on the inherent risks of these actions.
Still, employers cannot outright ban or prevent travel. They can only reinforce guidelines set by local, state, and federal officials.
I Traveled. Can My Employer Force Me To Quarantine?
If you choose to travel during the pandemic, your boss is generally within their rights to mandate that you quarantine for the CDC-recommended period of 14 days. Remember, the goal is to prevent workplace transmission. If enough positive cases develop at a specific worksite, California guidelines will likely require that the entire facility temporarily shut down. Worse still, other employees, some of which may live with high-risk individuals, will be put at risk of contracting the virus.
If you intend to travel, it may be worth asking your employer how they plan to handle your return to work. This way, you can set expectations and avoid surprises. For some positions, your employer may be able to permit you to work from home. By working remotely, you reduce the risk of transmitting the virus to your coworkers should you test positive after traveling.
Things can get more challenging if your job responsibilities cannot be conducted remotely. Because there are government orders to isolate following travel, some employees may be eligible for Families First Coronavirus Response Act (FFCRA) benefits if their boss mandates they self-quarantine. This pandemic-era legislation provides up to 2 weeks of paid leave for employees who are unable to work as a result of COVID-19-related need to isolate.
In order to qualify for these benefits, you must work for an employer with at least 500 employees nationwide. Those with more than 500 employees are not covered, smaller businesses with fewer than 50 employees can potentially be exempt from the law’s requirements.
If FFCRA pay does not apply to you, you may find yourself in somewhat of a challenging spot if your employer asks you to isolate following travel but refuses to pay you. Again, if you can work remotely for the isolation period, this is a nonissue, but if your job responsibilities must be performed in-person, working from home may not be possible.
In this circumstance, your employer may be within their rights to ask you to take any accrued paid leave or take an unpaid leave of absence for the duration of the quarantine. They cannot terminate or demote you for traveling or needing to isolate as a result of any COVID-19 related circumstance. However, because your presence in the workplace following travel goes against local COVID-19 guidelines, they are most likely within their rights to protect the workplace and the rest of its employees.
Speaking to your boss in advance about COVID-19 “return to work” protocols is likely your best bet to avoid unpleasant surprises. Your boss is also required to inform you if you qualify for FFCRA benefits, which may need to be leveraged to avoid taking an unpaid leave of absence.
I Tested Negative for COVID-19 After Traveling but My Boss Will Not Let Me Return to Work. Now What?
First, be aware that your employer may be within their rights to request that you get tested for COVID-19 before returning to work after a high-risk behavior, including holiday travel. Again, this protocol must be universally applied across all employees and not be targeted to specific individuals. COVID-19 testing can generally be procured for free.
In the interest of protecting yourself and others, you may have already received a COVID-19 test upon returning from travel and are happy to report you tested negative. While this is good news, it does not necessarily mean you are clear or safe to return to work. This is because the incubation period for COVID-19 lasts up to 14 days after exposure. This means that even if you test negative upon returning home from travel, you could still become infectious and/or symptomatic at any point during the 14 days following your last point of exposure (presumably, the airplane and airport).
Because of this dynamic, your boss may still require that you self-isolate for 14 days despite a negative test upon returning from travel. In fact, they may mandate an additional test once the 14-day incubation period has passed to confirm you are not an asymptomatic carrier.
Get Help with Workplace COVID-19 Safety Concerns
The COVID-19 pandemic has introduced numerous challenges to employees who are struggling to stay safe while staying employed. Though travel has become especially complicated, it is important that you understand and protect your employee rights. If your boss is attempting to prevent you from traveling or retaliating against you for doing so, our employment attorney at Marder Employment Law can help. We can also help you explore your legal options if you believe your boss is targeting you with invasive questions about your travel plans or is attempting to deny you your FFCRA benefits. Our team has over 25 years of legal experience and can work to hold your employer accountable.
Schedule a free initial consultation with our team by calling (888) 796-4010 or contacting us online.