Thu, 08/13/2020
While workers may be limited in their activities during the on-going COVID-19 pandemic, vacation remains an important benefit for many. However, with COVID-19 precautions varying across the states, employers have more interest in where there employees spend their free time than in the past, and the pandemic presents new considerations for both workers who want to take vacation and their employers.
Employers covered by Section 5(a)(1) of the Occupational Safety and Health Act (“OSHA”) have a general duty to ensure that the workplace is free from hazards “that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). As a result, employers may request information about an employee’s vacation plans during the pandemic.
However, the pandemic has not suspended the federal protections outlined in Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees based on race, sex, color, or national origin. Employers who elect to question workers about their vacation plans must do so in a way that is consistent across race, sex, color, national origin, disability status, or pregnancy status—i.e., not targeted against workers with identities or health conditions that are specifically protected under Title VII. Targeted questioning related to these identities and conditions may still be discriminatory. Further, if the employer is legitimately engaged in a practice for business necessity, then that practice—even though it may have a discriminatory outcome—may be defensible. 42 U.S.C. § 2000e-2(k)(1)(A)(i). In addition to the protections of Title VII, some states have added protections for workers who engage in lawful activity outside of the workplace, which includes taking vacation. This means that if your state has these added protections, your employer cannot retaliate against you for taking vacation.
Employers may ask about vacation destination plans to assess the risk of a worker contracting COVID-19 while away, and the risk of spreading the virus in the workplace upon their return. Based upon where a worker takes their vacation, an employer may require that worker to self-quarantine (typically for 14 days) upon their return. Depending upon the state, an employer may in fact be required to mandate that workers returning from vacation outside of the state self-quarantine for a period of 14 days.
If a worker wishes to travel to a place where they may become stranded due to changes in travel restrictions, their employer may be able to deny that vacation request if there is a business necessity for that worker to be at the worksite.
Even aside from state-specific requirements, employers may also ask workers returning from vacation to evaluate themselves for signs or symptoms of COVID-19, ask them to take a diagnostic test, and ask them to stay home if they are not well pursuant to OSHA guidance on returning to work. Related to the possibility that an employer may require a worker to self-quarantine, the Families First Coronavirus Response Act provides up to 80 hours of paid sick leave to workers who exhibit signs or symptoms of COVID-19, or are self-quarantining.
If you suspect that your employer is singling you out in their questioning about your vacation plans because of your identity or underlying health condition, please contact MSE at info@mselaborlaw.com.
For more information on workers’ rights during the COVID-19 pandemic, visit MSE’s Coronavirus Information page at https://www.mselaborlaw.com/resources/coronavirus-information.
