Changes to Business Travel Post-Coronavirus

By Michael L. Mansfield and Christina D. McConnell

COVID-19 stay-at-home orders are being lifted and states are re-opening. However, uncertainty remains about the long-term impacts of COVID-19. How will businesses be impacted? How will travel change?  As the United States re-opens and we hopefully move past the worst of COVID-19, businesses will have to assess their current and future operations and plan for a “new normal.” One important aspect of that “new normal” will be business travel.

For businesses engaged in nearly every industry, the importance of business travel ranges from being a valuable tool to an absolute necessity. Business travel can help businesses connect with and establish a larger client base, which can lead to new relationships and opportunities to increase revenue. In some industries, business travel is a seemingly indispensable necessity.  So, how does an employer navigate COVID-19 requirements and employee travel?

Changes to Travel Policies

As the curve of active virus cases flattens, businesses should implement new policies tailored to address COVID-19 concerns. This is especially true for business travel.  Travel policies should, at a minimum, address the following:

1. Review any travel requests and conduct a risk assessment. If a trip does not pass the risk assessment, it may need to be canceled.
2. Notify employees prior to leaving whether they will be required to stay away from work for 14 days upon their return.
3. Provide safety information to employees prior to their trip. This should include: (1) an explanation of what the COVID-19 virus is; (2) how the virus is transmitted; (3) what symptoms employees should look for; and (4) steps on how to avoid contracting the virus.
4. Provide employees with contact information for the CDC and local health departments at their destination prior to their trip.
5. Provide employees with any state-specific recommendations for traveling from their departure location and into their destination location.
6. Follow updated CDC recommendations for traveling as well as any state and international guidelines.

Some employers may be unsure of what to do when an employee returns from a business trip. Should the employer quarantine the employee? It depends.

An employer may require an employee returning from travel to stay away from the workplace for the maximum of the incubation period ­­– around 14 days. The employer can do a risk assessment based upon the CDC’s three levels of COVID-19 transmission to determine if quarantine is the right decision.

The CDC’s risk assessment levels as of June 3, 2020 are:

• Level 3, ­­­divided into two subcategories:
  • Widespread ongoing transmission with restrictions on entry into the United States
  • Widespread ongoing transmission without restrictions on entry to the United States
• Level 2, ongoing community transmission
• Level 1, limited community transmission

If an employee comes back from a level 1 location, quarantine may not be necessary. A waiting period for employees returning from a level 2 or level 3 location may be reasonable, or even required, depending upon the circumstances.

An employer may also require employees returning from business travel to provide a doctor’s note certifying that they do not have COVID-19 and are able to return to work. As of March 2020, the EEOC stated that these inquiries are permitted under the Americans with Disabilities Act (ADA) because they are either not disability related or would be justified under the ADA standards for disability-related inquiries of employees.

Employers should remain up to date regarding any EEOC responses to COVID-19 and should follow the advice of the CDC and other public health authorities while restrictions remain in place. Following these guidelines will help employers reduce their potential liabilities and maintain a healthy and safe work environment.

Employer Liability

A significant concern with regard to future business travel is the possibility that employees may contract COVID-19 and claim that they contracted it as a result of their work. Can an employer use a waiver to limit its liability if an employee contracts COVID-19? Does an employee have a valid workers’ compensation claim if he or she comes down with the virus?

Liability Waivers

At this point, the validity of an employer requiring a COVID-19 waiver is state-specific, but no state court has yet actually interpreted or ruled on the enforceability of a COVID-19 waiver.  Generally, liability waivers are enforceable against claims of negligence. A waiver does not, however, immunize an employer from liability for conduct such as gross negligence, recklessness, or intentional conduct. In addition, employee waivers in some states will be held invalid as against public policy, and waivers cannot relieve an employer of its obligations under workers’ compensation laws.

If a business chooses to require its employees to sign a COVID-19 waiver, the waiver should be drafted carefully. The waiver should explain what COVID-19 is, how it is transmitted, and have the employee acknowledge that employees are at risk of contracting COVID-19 while traveling. The waiver should include language explicitly disclaiming liability for negligence. Beyond these starting points, a “one-size-fits-all” approach isn’t possible given the wide variety of laws and regulations that could potentially impact the enforceability of a waiver in a given jurisdiction.

Practically speaking, it may be a good idea to have employees sign liability waivers before they travel for work, at least to impress upon them the risks in conducting the business travel. Always be mindful, however, that no waiver can replace an employer’s obligation to maintain a safe workplace or override applicable workers’ compensation laws.  As well, employers should understand that the waiver may be held enforceable by a court, depending upon the particular circumstances. 

Workers’ Compensation

Worker’s compensation is a mandatory state insurance program in 49 states that provides monetary benefits to employees who are injured at work. Whether COVID-19 is covered under workers’ compensation depends upon how each state interprets its statutes. As time goes by, however, employers could be subject to workers’ compensation claims from their employees who contract the virus while they are employed.

Generally, an employee is eligible for workers’ compensation benefits when an illness is related to his or her employment and is peculiar to the workplace. In most cases, it will likely be very difficult for an employee to prove that COVID-19 is peculiar to his or her workplace. Ordinary diseases like the flu or a cold, for example, are not peculiar to the workplace because they are common to the public at large. If an employee works in a job that exposes them to asbestos, however, and later develops an illness related to asbestos exposure, that exposure is peculiar to the workplace because it is not very common to the public.  Based upon what we currently know, COVID-19 is a hazard to everyone, regardless where a person is employed.

Lastly, with regard to workers’ compensation, an employee must prove that their contracting the illness was the result of workplace exposure.  In most cases, this will likely be difficult for an employee to prove. In some states, workers’ compensation covers work-related illnesses that are primarily (more than 50%) caused by work. Employees who travel could, in theory, contract the virus from someone at a meeting they attend or while getting on a flight for the business trip.  However, it could be just as likely for the employees to contract the virus from family, while shopping, or from any number of environmental sources. Therefore, an employee will generally have difficulty meeting the threshold causation requirements for a workers’ compensation claim related to COVID-19 exposure.

As businesses begin returning to a “new normal” and employees begin traveling again, employers have the opportunity to craft new travel policies, and to hopefully foster a closer relationship with their employees. Having a travel policy that explains the risks involved and how to minimize or counter those risks while traveling can give employees returning to business travel, and their families, comfort in an uncertain time. Proper planning can also help to decrease an employer’s potential liability, leading to less conflict in the workplace.