Post COVID-19 Employment Claims: Vacations Under Fire
Summer looked very different this year; gone were trouble-free getaways, and uncomplicated air travel came to a screeching halt. However, legal obligations regarding vacation time in the workplace cannot be overlooked if an employer wants to carefully avoid a potential COVID-19 related employment claim. Employers undoubtedly recognize the need for their employees to disconnect and enjoy some much needed R&R with their families. How does an employer balance that with concerns of employee health during a pandemic and where is the line between smart business practices and a lawsuit?
- Pre-Travel Inquiries: Employer attempts to restrict where employees can go on vacation are limited by laws and employee-relations concerns. However, employers generally can require their employees to inform them about travel plans as long as it is limited to information necessary to discern whether the employee is traveling internationally and for how long.1 Pre-travel inquiries must be uniformly and consistently applied through all levels to avoid discrimination claims.
- Post-Travel Quarantine: Businesses can consider requiring employees who travel to a country designated as a “hot spot” by the WHO or CDC to self-quarantine before returning to the workplace. Employers should be aware that if an employee is under a quarantine order from a physician or if the employee develops symptoms, the employee may become eligible for FFCRA sick leave.
- Health Screenings: Employers should encourage good choices by employees, provide up-to-date information regarding policies and COVID-19 hot spots, and have a plan for how employees should return to the workplace following a vacation. But requiring health screenings before an employee returns to work could land an employer in hot water if not done correctly. EEOC guidance allows an employer to require a COVID-19 test before an individual can return to the workplace under certain conditions. However, the policy must be enforced uniformly so that all travelers from certain locations are treated the same and the test should not be taken prematurely after the trip to reduce the risk of a false negative.
- Vacation Caps: The tourism industry has seen a drastic decline in travel and many employees are finding little incentive to use their paid time-off. California law does allow employers to set reasonable caps on vacation accruals. Although there is no set standard on what a reasonable cap may be, 1.5 to 2 times the annual rate has generally passed scrutiny. Some employers may want to temporarily increase the cap as a benefit to employees since there is little incentive to use vacation during a shelter-in-place order. It should be noted that California prohibits “use it or lose it” vacation policies. So if an employer decides to temporarily increase its cap, the employer cannot later take away any vacation hours in excess of the temporary cap once the employer decides to return the cap to its prior level.
The coronavirus pandemic has raised many workplace compliance issues—which can lead to lawsuits if employers don't keep up with evolving guidelines on wage and hour laws, leaves of absence, work-for-home arrangements, and compensation concerns. The first wave of COVID-19-related claims have begun, and are being filed with increasing frequency. But with careful balancing of the need to protect employee health and workplace morale, we will undoubtedly get through this together! As we like to say, “It’s good for you, it’s good for your employees, and it’s good for your bottom line.” For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.
1. Employees who telecommute should not be required to disclose travel plans to their employers as there is no longer the concern of exposure in the workplace.