COVID 19 in 19 Considerations for Resuming Business Travel Charles B.

COVID 19 in 19 Considerations for Resuming Business Travel Charles B. Jellinek, Partner Bryan Cave Leighton Paisner, LLP June 9, 2020

RESUMING BUSINESS TRAVEL The Coronavirus Pandemic Most employers have prohibited or restricted business travel since March As states start to loosen restrictions on business operations, many employers are looking to resume some semblance of “normal” business activities, including the resumption of business travel Considerations Legal Practical Protecting employees

RESUMING BUSINESS TRAVEL What legal obligations apply? OSHA and the general duty clause – 29 USC §654(a) Each employer - (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter.

RESUMING BUSINESS TRAVEL What legal obligations apply? 29 CFR 1904.5(b)(1) – For purposes of determining whether an injury is recordable and “work related” OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” Orders from state and local government and public health officials may apply: Where the employee works Where the employee is traveling to Points along the way (e.g. layovers, pass throughs)

RESUMING BUSINESS TRAVEL What legal obligations apply? The Americans with Disabilities Act and Certain State and Local Laws The requirement to accommodate employees who have disabilities Requests to not be required to travel Requests for alternative means of “attending” business events Requests for accommodations when traveling

RESUMING BUSINESS TRAVEL Needs to be a thoughtful process Plan with company management & stakeholders. Create a collaborative interim COVID-19 travel policy, working with HR, legal, security and other key stakeholders (travel providers and vendors). Regarding payment and expenses, consider restricting expense categories to what is agreed as “safe.” One sure way to impact compliance is to advise employees what will be reimbursed. Employee safety should be the guiding principle in planning.

RESUMING BUSINESS TRAVEL Should employers resume business travel? Considerations: Business need and requirement Impact on business if travel not permitted? Impact vs. risk analysis Can the business purpose of the travel be accomplished without travel? Does the destination want visitors? Can the employee travel safely? Is travel permitted under applicable state and local government orders? Have a policy for requesting and approving travel

RESUMING BUSINESS TRAVEL Approving business travel – considerations A policy, approval process or set of guidelines is recommended as a best practice A temporary/interim supplement to the employer’s normal travel approval processes – an artifact of employer’s focus on safety The policy provides guidance to employees for safe travel practices Requires employees to be thoughtful before travel Ensures there is a legitimate need for travel Ensures consistency / no disparate treatment

RESUMING BUSINESS TRAVEL Travel approval process - data points Purpose of trip – documenting that trip is necessary Does the end point of travel need / want the employee there? Does the destination’s local or state orders limit / restrict travelers’ entry? Is the destination a risk area? Hotspots to be avoided / what constitutes a hotspot? International vs. domestic? Rate of infection - increase over identified period Changes frequently CDC travel page / other sources

RESUMING BUSINESS TRAVEL Travel approval process - data points Travel plan Mode of transportation Encourage driving for destinations of less than five to six hour drive? Air travel - encourage most direct routes to limit time on plane First or business class v. coach to limit exposure? Can the employer bear such an expense? Specific instructions (e.g., require mask) Encourage trips be only as long as necessary and consider restricting overnight travel

RESUMING BUSINESS TRAVEL Travel approval – who approves? Have process around approval Ensures consistency Different approvals for different types of travel? For example: Direct supervisor for day trips in employee’s geography Manager for driving trips outside of geography HR for domestic travel that requires flight Higher level approval for international travel

RESUMING BUSINESS TRAVEL Pre-travel self-evaluation – Prior to travel, employees should be directed to confirm the absence of: Cough Shortness of breath or difficulty breathing Fever, chills or shaking Muscle pain Headache Sore throat New loss of taste or smell Any other symptom identified by CDC with respect to COVID-19

RESUMING BUSINESS TRAVEL Employer travel guidance to employees: Follow all of the COVID-19 prevention basics when traveling Wash hands often, and for 20 seconds Don’t touch your face Social distance – stay six feet away from others in business work gatherings Where you cannot social distance, wear a mask

RESUMING BUSINESS TRAVEL Employer travel guidance to employees: Follow all government health orders of your departure, destination, and travel-through jurisdictions – requires a regular check for updates Personal protective equipment Require use where required When / where required by law, provide Reimburse, if not provided Follow all directives from place visited –request in advance – be a thoughtful guest

RESUMING BUSINESS TRAVEL Employer travel guidance to employees: Lodging Limit trips to the shortest duration possible Stay at a hotel that is following the COVID-19 cleaning standards adopted by the American Hotel & Lodging Association (AHLA) - https:// www.ahla.com/sites/default/files/safestayguidelines 060320 0.pdf Check hotel websites to confirm cleaning standards

RESUMING BUSINESS TRAVEL Employer travel guidance to employees: Lodging Best practice – employer should provide disinfecting wipes to traveling employees to clean high touch surfaces in the hotel room and hotel bathroom Follow CDC guidance for hotel lodging

RESUMING BUSINESS TRAVEL Employer travel guidance to employees: Meals Encourage employees to bring food for driving, short or day trips? Encourage meals for longer trips to be taken from drive-through or curb-side pick-up, or room service?

RESUMING BUSINESS TRAVEL What if an employee gets sick / symptomatic while traveling? An employee who experiences symptoms consistent with COVID-19 while traveling should: Immediately separate him or herself from other employees, clients and business associates If very sick, go to a hospital or call 911 – get help / tested Alert company HR to discuss options for treatment / lodging / staying put if employee is confirmed for the virus

RESUMING BUSINESS TRAVEL Can an employer require travel? The answer is generally yes, with some caveats There should be a bona fide business need requirement that mandates the travel. Unnecessary travel should be avoided. The employer should consider any accommodation requests from employees with disabilities / health conditions that put the employee at greater risk if the virus were contracted, and engage in a good faith dialogue, as required by the ADA Be mindful of requests from other employees to not travel and employee relations considerations

RESOURCES The CDC has issued helpful guidance regarding travel - https:// www.cdc.gov/coronavirus/2019-ncov/travelers/inde x.html OSHA directs business travelers to refer to the CDC guidance https://www.osha.gov/SLTC/covid-19/businesstravelers.html BCLP Coronavirus Resources https://www.bclplaw.com/en-US/topics/covid-19/cor onavirus-covid-19-resources.html BCLP at Work – The BCLP Employment Law Blog https://bclpatwork.com/