The holiday season is here. Usually this means a decorated workspace, company potlucks, and anticipated travel plans. However, with remote work, social distancing, and travel restrictions, the pandemic has changed the holidays as employers know it. Among these changes, employers are now faced with the ultimate question – what needs to be considered for employees in a pandemic holiday season? Can employers restrict an employee’s personal travel – or even ask about it? Is mandatory COVID-19 testing post-holidays a “do” or ”don’t”? Take a look at the top employer need-to-knows this holiday season.

Seasonal Hiring 

Can an employer screen an applicant for symptoms of COVID-19? 

Yes, only if the employer has made a conditional job offer. All new-hire employees must also be held to the same screening requirement. 

If an applicant were to contract COVID-19 or show related symptoms, can an employer withdraw their job offer?

Yes. The CDC states that individuals who have COVID-19 or symptoms associated with it should not be in the workplace.

Personal Travel

Can an employer monitor an on-site employee’s personal travel?

Yes. Because the CDC recommends a self-quarantine after traveling, the Equal Employment Opportunity Center (EEOC) allows employers to ask on-site employees about personal travel to limit the chances of an infected workplace.  If initiated, this inquiry should exist for all on-site employees and be considered necessary for the business’s safety.

Can an employer restrict an employee’s personal travel plans?

Sometimes. Employers are required under OSHA to provide a safe workspace for employees; however, this does not mean they can restrict lawful off-duty conduct without a pre-existing policy. Additionally, some states – like Colorado or California – prohibit employers from taking adverse action based on an employee’s lawful off-duty activity. If an employer is interested in creating a policy related to employee personal travel, legal consultation or advisory is recommended.

Can an employer require a self-quarantine for employees who have travelled?

It depends where the employee has traveled. Employees traveling to states with quarantine orders should be allowed to work remotely, if possible, for at least 14 days following their return. Employees may be entitled to FFCRA or other paid sick leave if a self-quarantine results from medical provider advisory, positive COVID-19 test result, or experiencing symptoms. 

Family Gatherings

Can an employer ask an employee if they have family members with COVID-19 or related symptoms?  

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. However, employers may ask if an employee has been in contact with anyone who has been diagnosed with COVID-19 or showing related symptoms – omitting family-specific verbiage.

Can an employer limit their employees from personal gatherings during the holidays?

Maybe. Much like restricting employee personal travel, employers would need to issue policies that address these limitations in the name of workplace safety. Gathering restrictions, however, vary across the states – some changing on a consistent basis. This variation could make for an everchanging workplace policy, creating more work. The EEOC recommends employers give recommendations and safety information regarding personal gatherings to their employees.

Returning to Work

Can an employer require mandatory COVID-19 testing to employees after the holidays?

Yes. The EEOC allows an employer to administer testing “before initially permitting [employees] to enter the workplace and/or periodically determine if their presence in the workplace poses a direct threat to others”. If an employer wishes to test a single employee, the ADA requires the employer to have a reasonable belief based on objective evidence that this person may have the disease.