The subject of travel during the COVID-19 pandemic -- both personal travel and business -- has raised certain questions around rights and responsibilities. It’s a subject that’s especially pertinent for employers who both rely on business travel and are responsible for ensuring safe workplaces and practices for their employees.
After more than a year of remote working, companies are once again beginning to travel for business purposes. While this is great news for them, their employees -- some of which traveled frequently for work before the Coronavirus pandemic -- may not feel exactly the same way.
Since we are still living in the midst of a pandemic with new strains of COVID-19 being identified, people are understandably nervous about travel of any kind -- especially if they haven't received both vaccinations. When it comes to work-related travel, some may be thinking, “Can I be forced to travel for work?”, or, “Can I refuse to travel for work”?.
And, since many organizations have not updated their business travel policy and procedures to reflect the pandemic, these are questions with many gray areas.
Here, we’ll go through the business travel considerations every organization should look at and answer the important question: Can an employee refuse to travel for work?
Why might an employee not want to travel for work?
It’s important to consider why employees might not want to travel for work right now. While the answer might seem obvious, it’s not as black and white as you might think:
- The business travel destination has recently been labeled a “COVID-19” hotspot.
- The employee may have health conditions that make them especially vulnerable to the virus or place them in a high-risk category.
- An employee's family member or a member of their close circle may have a medical condition that makes them especially vulnerable to the virus or place them in a high-risk category.
- The employee may not have received the full dose of the COVID-19 vaccine.
Keep in mind that the pandemic has not affected everyone equally. For some, extra exposure to hotels, different modes of transportation, and other people can be riskier than for others.
Business travel considerations during the pandemic
As an employer, you have a duty to provide a safe and healthy work environment. Your duty of care obligation also extends to you having a legal and ethical responsibility to have a plan in place to care for them when they travel for business.
Now is the time to update your corporate travel policies, travel risk management policies, and FAQs to comply with workplace safety guidelines, federal law, and state restrictions on travel.
Here are a few factors to consider when updating your policies:
1. Federal, state, and local travel requirements
Federal, state, and local laws travel rules should be the cornerstone of your COVID-19 business travel policy. Since stay-at-home, shelter-in-place, and mandatory self-quarantine after travel orders are constantly changing in different states, it’s vital that you address how you will account for these policy shifts when you make travel plans.
2. Is the business trip necessary?
Minimizing the risk of infection and the spread of COVID-19 should be at the top of your priority list. It’s essential that you create a framework that can help you weigh up whether the trip can be deemed necessary or not.
It should also include any employee health exemptions, guidelines on collecting an employee's medical information, and an assessment of existing employment contracts. This should be created with input from your HR departments, with a heavy focus on risk management.
3. Testing and isolation requirements
Employers should address the issue of travel-related COVID-19 testing, isolation, test results, and medical examination requirements to their corporate travel policies. Although federal and state laws and guidance can be prone to change, having concrete processes in place, such as a commitment to paying for COVID-19 tests for employees before and after travel, regardless of whether they are displaying symptoms of COVID-19, will help reassure employees that their safety is a priority.
4. Provision of personal protective equipment
Supplying masks, hand sanitizer, gloves, other face coverings, and disinfecting wipes for employees at the company’s expense during travel also reminds employees that their safety is top of mind.
You'll also need to establish a policy that covers employees' conduct during the business trip. This should include guidelines on what to do if they believe they've come into close contact with someone who has COVID-19 and what constitutes as reasonable accommodation during the trip.
5. Procedure if an employee contracts COVID-19 during business travel
It is possible that, if an employee becomes infected with COVID-19 during a business trip, they may be able to make a compensation claim for workers’ benefits, and will also need to take sick leave. Establishing a proper procedure before this incident occurs will help you rectify and deal with the situation appropriately.
So, can an employee refuse to travel for work due to the pandemic?
Updating your corporate travel policies is a great start, but that’s not the be-all and end-all when it comes to the question of “Can an employee refuse to travel for work?”.
As always, different states and countries have different employment laws to follow. What might be true in California may be completely different in Arizona. However, there is no definitive answer to be found in The Department of Labor's Occupational Safety and Health Act (OSHA) regarding whether an employee can refuse to travel for work, or whether they can be fired for not traveling for work.
Since there is no one answer, employers should assess each business trip on a case-by-case basis. Although there’s no law stating that an employer can’t fire an employee for refusing to travel due to the pandemic, it would appear inadvisable to do so.
Employees could take their case to court under Section 11 of the OSH Act if they believe their employer is retaliating against them for not traveling during COVID-19. The employer could stand to lose money and suffer reputational damage from a case such as this.
Instead, as well as updating their travel policies, it’s recommended that businesses seek amicable alternatives, such as:
- Selecting another employee to make the business trip.
- Making alternative arrangements for the business trip, such as virtual meetings.
- Delaying the business trip until the outlook is better.
It's also advisable to seek legal advice on this issue, as well as taking into consideration any guidelines from:
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