Answer: The State Department and Center for Disease Control (CDC) have been providing international travel guidance for weeks and in the case of some locations, months. Along with other developments last week, on Friday, President Trump declared COVID-19 a national emergency and the CDC warned Americans about traveling within the United States, bringing travel precautions to home soil and emphasizing the evolving nature of the pandemic. The CDC advises against traveling to locations with a higher risk profile than the one in which an individual lives and works. https://www.marketwatch.com/story/as-coronavirus-spreads-cdc-warns-americans-about-traveling-inside-the-us-2020-03-12. As a result, we recommend the following actions:
- Temporarily suspend non-essential business travel to:
- Level 3 (Reconsider Travel) and 4 (Do not Travel) locations specified by the U.S. State Department: https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/;
- European States covered by the Presidential Proclamation announced Wednesday, March 11, 2020, banning travel to the US from 26 European States: https://www.whitehouse.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/;
- High Risk Countries identified by the CDC: https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html; and
- US locations with a higher risk profile than the one in which an employee lives and works. Data is being collected by Johns Hopkins University: https://coronavirus.jhu.edu/map.html.
- Personnel should be requested to self-report any travel (business or personal) to any restricted location, and should be advised that they may be requested or required to furlough or work from home for a period of 14 days immediately upon their return to their home location, even if the travel was essential business travel. There could be situations where an employer is required by law to send employees home and/or take other safety measures such as disinfecting work areas after an employee returns from a restricted location, to comply with OSHA’s General Duty Standard, which requires employers to keep the workplace free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to employees.” N.C. Gen. Stat. 95-129(1).
- When an employee reports travel to a restricted area, depending on the level of the risk and the employee’s compliance with a request or requirement to stay home, the employer may have a duty to disclose the potential risk to other employees. If the report involves an actual exposure (evidenced by a positive test for COVID-19), the employer should disclose the risk to other employees. Advising affected employees that a team member has been exposed or diagnosed with COVID-19 is appropriate to do, so long as you do not identify the team member with the potential health issue. In some teams, it will be impossible for employees not to deduce the identity of an affected employee, but it cannot be the employer who shares that information, because health information is required by law to be maintained as confidential.
Because the COVID-19 pandemic is a fluid situation, and because risks can be presented in a myriad of ways, it is important to analyze each situation on a case by case basis, to determine the appropriate course of action, rather than trying to implement hard and fast rules in advance.
If you need help with your planning or working through scenarios that present themselves in your workplace, we are here to help. Please contact Morningstar Law Group Partner, Amie Flowers Carmack, for assistance: acarmack@morningstarlawgroup.com or 919.590.0394.
