By Lisa Lehmann Nichols and Scott P. Mallery
Seyfarth Synopsis: Between states reopening and summer vacation beginning, employers have wondered what say they have over their employees’ use of PTO. Below are some of most frequently asked questions from employers about employee vacation in light of the pandemic.
As Seyfarth has noted throughout the pandemic, businesses seeking to reopen must square reopen plans with the vast maze of guidance issued by jurisdictions across the nation. With an already-struggling economy in the backdrop, reported cases of COVID-19 have spiked, forcing many business that expended resources to attempt to reopen to close their doors once again. Despite crises upon crises, and a million other thin lines employers must balance upon, we have also moved in to summer time. Employees may now worry less about contracting COVID-19 and, in the process, catch a new bug: the travel bug. Indeed, according to some contact tracers, the desire to gather and get out of the confines of the home after quarantine has in part caused the spike in reported cases. While most were required to remain home, many employees accumulated large amounts of PTO during the stay-at-home orders. Which begs the question: What say do employers have, or not have, over an employees’ use of PTO. We at Seyfarth have asked questions (FAQ) from employers regarding employee travel and PTO, as well as some suggestions:
I’m worried that too many of my employees will want to take vacation at the same time after stay-at-home orders end. What should I do?
Employers who are concerned about employees taking PTO during the same time period may be able change their policies and/or exercise existing discretion allowed in policies to deny requests. Employers should first check the language in their policies and any bargaining agreements to ensure they have the right to discretionary changes in those policies. Also, if an employer has a use it or lose it policy, and does not allow an employee to take accrued time, that can be problematic and could result in the need for a limited carryover for a period of time. For what carryover your specific jurisdiction requires — or does not require — please feel free to reach out to Seyfarth for additional guidance.
Below are some tips as to how to modify your vacation policy based on business needs, keeping as always in mind compliance considerations:
- If your company is financially able, entice employees to give up PTO by offering to cash out their unused PTO.
- Notify employees of blackout dates for PTO when there is either limited or no PTO available. Note: if you previously approved an employee’s vacation during a blackout period, make sure to honor that approval.
- Implement an employer-sponsored leave-sharing program that would allow an employee to donate accrued PTO to benefit other employees who are in need of taking more leave than they have available. See also IRS guidelines for major disaster leave-sharing plans and medical leave-sharing plans. Of note, some employers may receive backlash for such a program, particularly large employers.
- Consider proactively creating or reducing accrual caps. Note: check to see what PTO is legally required in your location before making reductions, and know that certain jurisdictions do not allow you to change caps if it will result in the loss of already accrued and earned time.
I am worried changing my vacation policy will result in backlash, what can I do?
Inevitably, many employees will be unhappy with reductions to PTO policies or an inability to take the time when they want. An employer may reduce the backlash by (1) choosing the least intrusive means possible for reducing PTO that is consistent with applicable law and (2) being candid with employees about the company’s financial situation and the reason for the PTO reduction (this is especially true if your company has taken a big hit during the pandemic).
May I limit the places where employees go for vacation (or protest) if I’m worried about them potentially spreading COVID-19 at work?
No. Employers may not restrict where employers go for vacation and may (see below) not restrict employees from attending protests during their PTO.
Employers who are concerned about the spread of COVID-19 may want to create a policy that if employees choose to travel to areas where there is a high-risk for contracting coronavirus, they will be subject to a 14-day quarantine period before returning to work. It is important that employees know of this policy ahead of time. The employer may want to consider linking its travel restrictions with travel advisories from the Centers for Disease Control and Prevention (CDC) and State Department. In addition, some states mandate a 14-day quarantine for travelers entering the state from areas of increased risk.
Additionally, employers may be able to require returning employees undergo a temperature check and other screening to determine whether an employee is experiencing COVID-19 symptoms or has been exposed to the virus. See EEOC FAQ.
May I require employees who have recently attended large events, such as weddings or protests, to quarantine before returning to work?
A mandatory quarantine period is not recommended for employees who attend large events unless the employees also traveled to high-risk areas as described above. Instead, according to the EEOC, employers can check employees’ temperatures and require testing for the virus prior to returning to the workplace. Employers may also want to send an email recommending that employees who choose to attend large events get tested for coronavirus and/or self-quarantine. Employers can provide testing resources to ease the financial burden and potential backlash (for example, many cities are offering free coronavirus tests to protestors and are even recommending a 14 day quarantine after attending large events).
It should be noted that, in this space, there is a broad smattering of state statutes that may, or may not, permit an employer to discipline an employee for attending large events where COVID-19 could possibly be contracted. We advise you reach out to your favorite Seyfarth attorney for state specific questions.
Generally speaking, can an employer discipline an employee for conduct on their own time?
This questions draws the most famous of all lawyer responses: it depends. The pandemic has raised the saliency of this question. Unfortunately, there is a broad smattering of off-duty conduct statutes that vary widely from state to state and locality to locality without a precise pattern. Despite this variation, some common threads are evident.
First, the analysis should always begin with the premise that — apart from Montana — employment in the United States is “at will,” allowing either party to terminate the employment relationship at will. Obviously, an employer cannot terminate an employee for a discriminatory reason, i.e., based on an employee’s age. Second, though very rare, some jurisdictions provide for a right to privacy-seclusion, wrongful discharge tort, and similar common law claims. Third, many states have off-duty conduct statutes of one type or another, but the vast majority of these are in fact very narrow in what they protect. Those states that do govern off-duty conduct are almost invariably limited by a proviso that the protection will not apply if the conduct in question has a demonstrable adverse impact on the employer’s business or is otherwise unlawful. Fourth, some jurisdictions have enacted statutes protecting off-duty political activity and demonstrations with a political slant. These are typically very narrowly drafted, and heavily fact dependent. It is important to have all of the facts and understand applicable laws before proceeding with any disciplinary action.
For additional guidance on a particular factual scenario, we recommend you reach out to your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.