Travel is one of life's pleasures that has been affected by the pandemic. And we acknowledge that it's a luxury under normal circumstances, and especially now when so many are suffering financially. For those who are able to travel, how that happens this year requires a host of considerations as to safety, logistics and your employment. For New Yorkers, traveling to a non-contiguous state (i.e., a state other than Connecticut, Massachusetts, New Jersey, Pennsylvania, and Vermont) is going to implicate all of these things.
On the employment front, here's a non-exhaustive list of things to consider before you travel:
- If you voluntarily travel to a state that requires quarantine when you return to New York, you are NOT entitled to paid leave under New York’s Paid Leave for COVID-19 Quarantine “if the travel was not taken as part of your employment or at your employer's discretion”. “Employer's discretion” is not otherwise defined and since quarantine leave typically requires an order of mandatory or precautionary quarantine – as well as making an application for benefits to your employer's PFL provider – simply receiving permission from your employer may not entitle you to benefits. When read in the spirit of the other travel-related guidance, this likely refers more to work-related travel. (Source: NY PFL COVID-19 FAQs)
- Similarly, no quarantine leave if you voluntarily travel to a country with a “level two or three health notice from the CDC if your travel was not at the direction of your employer and you were provided notice of the travel health notice and knew about this restriction in the new law”. (Source: NY PFL COVID-19 FAQs)
- Employers are allowed to inquire about personal travel. This is not considered to be a disability-related inquiry under the ADA. (Source: EEOC)
- Employers are permitted to require COVID-19 testing prior to reentering the workplace. (Source: EEOC)
- Familiarize yourself with CDC travel guidelines.
As a more general matter, most employees in New York are “at will” and have no employment contract applicable to vacation time/pay or circumstances of termination. New York does not have mandatory vacation time nor a general entitlement to being paid out for your vacation time if you are fired or resign. This depends on employer policies. (Source: New York State Department of Labor)
If an employer disagrees with your decision to travel during COVID-19 and/or cannot afford to have an employee absent from the workplace for a long enough period to not only take the vacation but also comply with quarantine requirements, at this point, as long as the employer applies its decision making evenly among employees (i.e., is not applying its policy in a discriminatory manner) and there is no contract involved, we see no legal impediment to firing an employee for taking a vacation at this time. In fact, we are already starting to see this happen.
This is not intended to be an exhaustive list of issues that may arise from taking a vacation during COVID-19, and should not be relied on as legal advice in your decision-making. We also note that we are talking about voluntary vacations for pleasure. There are various other types of leave that an employee may be permitted to use “vacation time” to pay themselves, that are not a “vacation” in the ordinary sense of the word and that may otherwise be protected in some way (such as FMLA leave).
If you have been fired for taking leave during COVID-19, and believe that your employer has either applied its policies in a discriminatory manner, or that you are protected by a COVID (or otherwise) leave law, feel free to give us a call or complete an intake form on our website. We are happy to see if we can help.