As COVID-19 vaccines become widely available and businesses look to safely resume travel, employers may be wondering if they can require "vaccine passports"—proof of vaccination—before allowing employees to travel for work.
"Simply asking for proof of vaccination for COVID-19 is legally permitted," said Mark Phillips, an attorney with Reed Smith in Los Angeles. Any follow-up questions, however, such as asking why an unvaccinated employee did not receive a vaccination, could elicit information about a disability and would be covered by the Americans with Disabilities Act (ADA) and other employment laws that require such inquiries to be "job-related and consistent with business necessity."
Phillips said employers should, therefore, generally avoid asking employees to disclose medical information in addition to proof of vaccination. Employers also should continue to assess whether business travel is necessary or if alternative arrangements to in-person meetings can be made.
Legitimate Business Reason
Although many businesses are not mandating vaccination, employers should have a plan in case vaccination is required by travel vendors or business partners. What if a salesperson needs to travel and certain airlines and hotels are requiring customers to show proof of vaccination? What if event venues are requiring all contractors to be vaccinated?
Employers will have to consider how industry rules and federal, state and local mandates impact business travel for vaccinated and nonvaccinated employees, said Stephanie Rawitt, an attorney with Clark Hill in Philadelphia. Can the employee perform the essential functions of the job? Are alternatives to travel available?
"Create clear-cut, transparent policies to set expectations," Rawitt said.
Employers can request or require employees to submit proof of vaccination if there is a legitimate business reason for doing so, explained Alexa Miller, an attorney at Faegre Drinker in Florham Park, N.J. They may need to know vaccination status to plan for essential business travel and prepare for quarantine requirements upon arrival or return from travel, she noted.
If employers mandate COVID-19 vaccination, they will need to explore reasonable accommodations for employees with underlying medical conditions that prevent them from receiving the vaccine. Similarly, under Title VII of the Civil Rights Act of 1964, employers will have to explore reasonable accommodations for employees with sincerely held religious objections to receiving a vaccine.
Absent medical or religious exemption from a mandatory vaccination requirement, an employer can have different policies for vaccinated and nonvaccinated employees. "But employers should tread very carefully with such an approach and consult with legal counsel before doing so," Phillips said.
Keeping Up with Travel Guidance
As employers plan for work travel, they should review COVID-19-related rules in the jurisdictions where their offices are located, as well as the places employees will be visiting, said Lauren Leyden, an attorney with Akin Gump in New York City.
Creating travel policies that are consistent with federal, state and local guidelines can be difficult because the rules frequently change and may vary from location to location.
"Travel restrictions are easing more so domestically than internationally," Leyden noted. For domestic travel, the U.S. Centers for Disease Control and Prevention (CDC) has said that fully vaccinated people do not need to get tested for the coronavirus before or after a trip or isolate upon their return. The agency still recommends that nonvaccinated people avoid nonessential travel. If they must travel, nonvaccinated people should continue to get pre- and post-trip COVID-19 tests and self-quarantine upon return, according to the CDC.
Whether vaccinated or not, the CDC recommends that all travelers continue taking certain precautions to protect others, such as wearing a mask while in public and on trains, planes and buses; staying 6 feet away from people who are not traveling with them; and frequently washing their hands or using hand sanitizer that contains at least 60 percent alcohol.
"One of the huge frustrations is that there isn't a single model," Leyden said, noting that state and local laws can vary significantly.
For example, New York developed the Excelsior Pass, which is an app that allows people to digitally store and share proof of vaccination. "Businesses and venues can scan and validate your pass to ensure you meet any COVID-19 vaccination or testing requirements for entry," according to the New York State website.
The governors of Arizona, Florida and Texas, however, want to ban businesses from requiring vaccine passports. For example, Arizona Gov. Doug Ducey issued an executive order banning state and local government agencies from requiring proof of vaccination. "Businesses contracting with the state to provide services to the public also cannot require documentation," according to the governor's office. Private businesses, however, are not prohibited from requiring proof of vaccination "to provide services or allow entry."
Leyden said employers should not only be thinking about if they can but also if they should require vaccine passports. Vaccination status might not matter from a legal standpoint under a jurisdiction's quarantining and testing requirements.
"If there's no difference for vaccinated and nonvaccinated travelers, what is your legitimate business reason for asking?" The best way to set policies is to base them on the applicable laws and clearly explain to employees the reasons for the policies, Leyden recommended.
She cautioned against having a static policy, because recommendations and requirements are changing. "We are going to continue to see changes in the next few months, so it's important to be flexible and check back in."
Testing and Quarantining
Some locations, such as Los Angeles County, require travelers to self-quarantine if they are not fully vaccinated and have traveled outside of a specified geographic area. Los Angeles public health authorities also recommend that nonvaccinated people get tested for COVID-19 before travel.
Should an employer pay for testing and isolation time? "If the travel was required by the employer, the cautious and prudent approach to any self-isolation post-travel would be to compensate that time," Phillips said.
Miller noted that employees may be entitled to paid leave under state or local law if they are unable to telework when they return from travel because they need to quarantine or isolate based on recommendations from public health authorities.
"If there are no legally mandated paid-leave entitlements, employers should be flexible and provide employees with the option of using paid time off, rather than mandating it," she suggested.
Employers should remind employees who are traveling for business to continue to follow state and local public health directives and CDC recommendations, she said. "We don't want COVID-19 vaccine passports creating a false sense of security that mitigation measures are no longer necessary."
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