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07.14.2020 | Legal Advisory

With summer vacation season upon us and many businesses beginning the process of reopening, many employers are now dealing with employees leaving Massachusetts to travel out of state, potentially to areas of the country that are experiencing surges in COVID-19 cases, which may jeopardize the safety of the workplace. Below are responses to frequently asked questions regarding employer and employee rights and responsibilities under Massachusetts law concerning employee travel.

1. What is Massachusetts’ current guidance regarding out-of-state travel?

On July 1, 2020, Governor Baker updated the Commonwealth’s travel advisory. Currently, all travelers to Massachusetts, including Massachusetts residents returning home, are instructed to self-quarantine for 14 days. Travelers from Rhode Island, Connecticut, Vermont, New Hampshire, Maine, New York and New Jersey arriving in Massachusetts are exempt from this directive and need not self-quarantine for 14 days. Workers who have been deemed essential critical infrastructure workers by the federal government are exempt from the directive to self-quarantine for 14 days if travelling to Massachusetts for work purposes. 

2. Can I prohibit my employees from travelling out of the region, or to certain areas of the country that are COVID-19 hotspots?

While some states prohibit employers from restricting lawful off-duty conduct, Massachusetts is not one of those states. Employers may impose travel policies designed to ensure the safety of employees as a term and condition of employment. Employment in Massachusetts is generally “at-will,” and an employee therefore can be terminated for any reason or no reason, including for not complying with a travel policy that is applied to all employees in a non-discriminatory manner. Certainly, employers would generally tailor such travel policies with the Commonwealth’s and CDC’s guidance regarding travel restrictions. Moreover, employers may prospectively change vacation policies at any time (so long as employees retain the vacation time they have already earned under the prior policy). Of course, employers with unionized workforces and collective bargaining agreements would be limited in taking the unilateral actions described above.

3. May I require my employees to notify us if they are travelling out of the region, particularly if to a COVID-19 hotspot?

Yes. Employers have an interest in maintaining the health and safety of their workforces, which may be jeopardized by an employee returning from an area affected by COVID-19. Consistent with these interests, employers may impose policies that require employees to notify employers of personal travel outside the region, or to COVID-19 hotspots, so long as such policies are applied to all employees in a non-discriminatory manner. 

Many employers are asking about employee travel on pre-screening questionnaires that employees are required to complete prior to arriving at work each day, at the beginning of the workweek, or at other intervals of time. (As a reminder, any pre-screening questionnaire must be kept confidential and in a separate file from an employee’s personnel file). Employers may also include this information request into their regular vacation request processes or require employees to complete paperwork or online surveys in advance of travel out of the region.

4. If I allow my employees to travel out of the region, what should I do when they return?

If an employee travels to a part of the country subject to the Governor’s travel advisory (i.e., outside of New England, New York, and New Jersey), an employer can require that employee to self-quarantine for 14 days prior to returning to work. The Massachusetts Attorney General encourages employers to allow employees to use earned sick time or other paid time off (PTO) in this situation. An employer may also require that the employee use his/her accrued PTO.

An employer may also choose to require COVID-19 tests for all employees returning from personal travel. The EEOC has advised that employers may take steps to determine “if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others,” including administering COVID-19 tests prior to entering the workplace. If an employer requires COVID-19 testing, it must cover the cost of the testing and compensate employees for their time attending the medical appointment to receive the test. (As a reminder, results of such testing must be kept confidential and in a separate file from an employee’s personnel file).

5. If my employees quarantine after travel, are they eligible to use paid sick leave under the FFCRA Emergency Paid Sick Leave Act (EPSLA)?

We think not. Governor Baker’s instruction to quarantine after out-of-region travel is an advisory, not a quarantine order as defined by FFCRA regulations.  If Governor Baker’s instruction was deemed an Order, employees returning to Massachusetts from vacation would be eligible to use emergency paid sick leave under the EPSLA. Governor Baker has stated that the quarantine instruction is an advisory, and the Department of Labor’s Massachusetts office has advised Nutter attorneys that the travel advisory does not constitute a mandatory quarantine order. As such, employees returning from vacation may choose to quarantine, or be required to by their employer, but will not be eligible for paid leave under the EPSLA. As noted above, the Massachusetts Attorney General encourages employers to allow employees to use earned sick time or other PTO in this situation. 

6. What if an employer has already allowed an employee to quarantine after personal travel, expecting to take advantage of the EPSLA tax credits?

In the absence of clear guidance from the Commonwealth on the issue, employers may have interpreted Governor Baker’s travel advisory instructing travelers to Massachusetts—including residents returning from travel out of state—to quarantine for 14 days as a quarantine order, rendering employees eligible to use paid leave under the EPSLA during the quarantine period. However, because the travel advisory is not a quarantine order as defined by FFCRA, employees are ineligible to use paid leave under the EPSLA during a post-vacation quarantine period and an employer cannot claim tax credits for that period of leave. Further, that employee remains eligible to use paid leave under the EPSLA until December 31, 2020. 

What’s Next?

We are continuing to monitor travel advisories and restrictions and can assist employers in developing best approaches to these workplace issues.  

This advisory was prepared by Liam O’Connell and Natalie Cappellazzo of Nutter’s Labor, Employment and Benefits practice group. If you would like additional information, please contact Liam, Natalie, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.