Updates in the Law
Summertime means employee vacation requests. But, with COVID-19 still very prevalent and even surging in some locales, the handling of such requests can be troublesome for employers. In addition, how you handle a vacationing employee upon their return, will depend upon where they went and what they did.
In short, employers can ask employees requesting vacation time to disclose their travel plans and ask employees where they traveled once they return. The key is to make sure the information being requested is in accordance with business necessity and that you are asking for the information in a nondiscriminatory manner.
At the outset, business necessity is provided by the Occupational Safety and Health Act. This Act requires employers to ensure that the workplace is free from recognizable hazards likely to cause death or serious physical harm. Therefore, keeping the workplace and employees free from cases of COVID-19 provides the business justification for employers to ask where employees are going during their time off.
However, in questioning employees about their vacation plans, employers need to be careful not to run afoul of the Americans with Disabilities Act, Title VII of the Civil Rights Act or other similar state laws. For example, if an employer asks only Hispanic employees to disclose their travel plans
, the employer’s request could be viewed as discriminatory on the basis of national origin in violation of Title VII. Similarly, if an employer has an employee known to be immunocompromised, and asks only that employee to explain his travel route and destination, the employer’s questioning may be considered discriminatory under the ADA.
In short, if you’re going to ask about your employees’ travel plans, be consistent. And make sure managers and supervisors responding to vacation requests are trained to ask these questions using nondiscriminatory methods.
Of course, where an employee is traveling to and what the employee may do while on vacation may impact how you deal with them upon their return. Did they go to a known COVID-19 hotspot? Did they travel abroad or go on a cruise? Did they attend a rally, concert, or protest? Do they have symptoms, or were they in contact with someone who tested positive? Are there any applicable state or local laws that require self-isolation? All these issues will need to be considered in dealing with employees requesting vacation or on their return. We can assist you in answering them if they arise.