Managing Traveling Employees and International Workforces & Legal Concerns During COVID-19
The COVID-19 pandemic has swept across the world, causing the U.S. to impose restrictions on travel. These include a travel ban that affects foreign nationals from many European countries and certain other regions in which the virus is widespread. However, the ban does not apply to U.S. citizens, green card holders, and certain immediate family members of citizens and green card holders, among other groups. These people may reenter the U.S., although they must arrive at an airport on a designated list and submit to a medical evaluation when they arrive. Even if they do not have symptoms, they must stay at home for 14 days after their arrival.
The U.S. State Department has advised all Americans to avoid international travel during the COVID-19 outbreak. An employer probably cannot prevent an employee from traveling to a certain region of the world for personal reasons if their travel is legal. The employer may be able to terminate the employee for traveling to a region with a significant outbreak of the virus, although the law is not entirely clear on whether this may violate the Americans with Disabilities Act (ADA). Thus, if an employee insists on traveling despite the risk, the employer may want to take less drastic steps than terminating them. The employer should be especially alert to any symptoms that the employee exhibits on their return. Read more here about how an employer should respond when an employee develops COVID-19 symptoms.
Sometimes an employer may require an employee to travel for business purposes. An employee generally cannot refuse to travel in this situation, since they can refuse to work only if a direct threat to their safety exists. However, an employer may want to screen certain employees from travel if they would have a higher risk of contracting COVID-19 or developing severe symptoms from it. Employers and employees should recognize that they have parallel interests, since a workplace can be significantly disrupted if an employee contracts the virus.
Expatriated and Foreign National Employees
Some workforces include employees who live abroad or spend part of the year in a foreign country. These employees may be stranded during the COVID-19 outbreak for legal or logistical reasons, and their employers should be ready to help them return home if they wish. In some cases, an employer may feel that it is prudent to require all expatriated employees to return home. In other situations, an employer may find it easier to allow expatriated employees to stay in their country of residence, while asking them to keep the employer updated on their circumstances. The situation may become especially complex if an expatriated employee is living in a region where the virus is widespread, or if the employee is quarantined. An employer may want to consult an attorney to ensure that they understand their legal obligations under both U.S. laws and the laws of the foreign country.
Many U.S. businesses employ foreign nationals, who may be concerned about their immigration status. A foreign national employee who is outside the U.S. at the time of the outbreak probably will not lose their status due to their absence. However, green card holders may face this risk if they spent a long time outside the U.S. prior to the COVID-19 outbreak. A foreign national employee with a temporary visa, such as an H-1B visa, will retain their status even if they are unable to work. This situation would be similar to an unpaid leave that the employer had granted. If an employer decides to terminate a foreign national employee with an H-1B visa, the employer must formally withdraw the employee’s H-1B petition from USCIS and offer to arrange transportation for the foreign national to their previous country of residence.