Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part eight of this series addresses COVID-19 concerns that may arise when employees return to work from vacation.
Tip 8: Develop Guidance for All Employees Before Vacations Begin
Although the U.S. Virgin Islands and an increasing number of states have adopted travel restrictions in an effort to reduce the spread of COVID-19, as employees return to physical worksites and begin to use accumulated leave, employers will be called upon to determine how to mitigate the risk of worksite exposure when employees return from vacation.
Putting policies in place in anticipation of the likelihood that employees will engage in personal travel can be an effective measure to mitigate the risks that may arise from ad hoc responses to issues associated with returns from vacation. Below are several frequently asked questions related to this issue.
Question 1. Can an employer require an employee who is returning from vacation to produce a negative COVID-19 test before returning to the workplace?
Answer 1. Yes. According to the U.S. Equal Employment Opportunity Commission (EEOC), an individual with COVID-19 “will pose a direct threat to the health of others”; so in order to protect other employees, employers “may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” However, employers may want to keep in mind that selectively testing (or selectively requiring employees to be tested or to produce proof of a negative test result) creates a potential for claims of discrimination or retaliation.
Q2. If an employer does not have a current practice of administering COVID-19 testing to the workforce, what other measures can it take to mitigate the risk associated with potential travel-related exposure?
A2. Employers can adopt policies that make clear to all employees the expectation that they will adhere to travel-related restrictions established by U.S. Virgin Islands and other jurisdictions and public health authorities. For example, the U.S. Centers for Disease Control and Prevention (CDC) recommends that individuals avoid non-essential international travel. In addition, U.S. Virgin Islands Governor Albert Bryan, Jr.’s July 9, 2020, tenth supplemental executive order requires every person who enters the U.S. Virgin Islands from a country, state, or territory with a COVID-19 positivity rate of greater than 10 percent to present “a negative test result obtained within [five] days of commencement of travel to the [U.S.] Virgin Islands.” Individuals who do not provide results of a negative, pre-arrival test must quarantine for 14 days. If a test is administered after arrival into the territory and the test result is negative, the quarantine period may be shortened.
In addition to affirmatively adopting a workplace rule that requires adherence to the requirements of the executive order, employers may wish to remind employees that they will be required to use additional leave time to cover any quarantine period resulting from voluntary travel. In view of the likelihood that COVID-19 will continue to affect communities for some time, employers that have not updated their paid time off (PTO) and other applicable leave policies to address self-quarantine periods may wish to consider doing so. Among other considerations, employers may wish to review and, if appropriate, modify existing policies to ensure that they do not inadvertently discourage employees from remaining home when they are experiencing symptoms that are consistent with COVID-19, even if not yet clinically confirmed, or when they have been in close contact with someone with COVID-19.
Employers also may wish to implement policies that require all employees to certify that they are not experiencing symptoms associated with COVID-19 at the start of each workday. As a practical matter, employees may contract the virus even if they do not travel, and requiring testing or any other precautions only for employees who have recently travelled will not address other potential sources of exposure, including travel by members of the employee’s household or other close contacts. By contrast, implementing a policy that requires all employees to certify an absence of symptoms at the start of each workday may be a more effective mechanism for mitigating the spread than focusing only on employees who are returning from vacation. If employers adopt such a policy, they may wish to consult guidance from the CDC for a list of symptoms commonly associated with COVID-19, and include those symptoms (as updated from time to time) in any self-certification materials employees are asked to complete.
Q3. If other employees refuse to work with an employee who has recently travelled, can the employer require that employee to remain away from the worksite?
A3. CDC guidelines provide that “sick employees … should not return to work until the [CDC’s] criteria to discontinue home isolation are met, in consultation with healthcare providers.” However, employers may want to carefully consider all relevant circumstances when considering whether to bar asymptomatic employees from the workplace merely because other employees have expressed a concern about recent travel. If the employee is able to telework, requiring the asymptomatic employees to stay away from the worksite is less likely to be met with challenge. However, employers may want to communicate the expected duration of the telework directive, as well as noting that it is being done as a preventative or precautionary workplace safety measure, and in accordance with the tenth supplemental executive order, which encourages businesses to allow employees to work from home or remotely. If asymptomatic employees are unable to telework, employers may find it appropriate to consider whether they are able and willing to compensate these employees for any time away from work. In doing so, employers may wish to establish clear policies about deviation from their usual pay or leave policies to ensure that any modifications are applied in a consistent manner.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs. Ogletree Deakins will post additional tips for employers doing business in the U.S. Virgin Islands in 2020 on the firm’s U.S. Virgin Islands blog.
