Seyfarth Shaw’s Jim Swartz talks:
- ADA implications of resuming business travel
- The notion of travel as an essential business function
- Corporate protection from traveler Covid-19 liability
Jim Swartz is a partner of law firm Seyfarth Shaw LLC, based in Atlanta. He spoke with BTN editorial director Elizabeth West about the challenges companies have in returning to business travel, liability concerns and practicalities.
BTN: What is your travel schedule normally like?
Swartz: I handle cases all over the country. I typically am on a plane two to three times a month for trips of different duration. The last business trip I’ve taken was back in February.
BTN: Same here, and similar to many of us. Since then, getting corporate America back on the road has been a delicate process, in part because companies are concerned about potential liability for Covid-19 cases. Is it more complicated than that?
Swartz: So let’s start with … workplace safety concerns. There are two sides to that equation: First, is it safe to send an employee someplace to work? Employers are going to have to be prepared to respond to concerns that employees raise about going to an area that’s experiencing a major outbreak of Covid-19. Employees, at least in theory, could file a [U.S.] Occupational Safety and Health Administration complaint about being required to do that sort of thing. Alongside that, employees may be in a particularly precarious medical situation that ordinarily wouldn’t be an issue [for travel] but could be now. But [if] employers are telling them, “Hey, you have to go to X location,” and there happens to be an outbreak there, the employee may say, “Well, I have an existing disability and I need an accommodation.”
BTN: Are you saying that medical conditions that may not have been viewed as a disability in the past may now become a legitimate disability that requires accommodation?
Swartz: Exactly. Something that might not have been considered a disability under the Americans with Disability Act now, under the circumstances, might look different. So for that structure, it would become an issue for business travel.
Then on the other side of the equation, employers need to think about what to do when an employee returns from an area that might be a Covid hotspot. Are employers allowed to make an employee quarantine? Can they just consider other, sort of, hygiene measures?
BTN: This sounds like discrimination, but can employers prevent certain groups of people from going on business trips?
Swartz: Well, right. That could flow out of a relatively well-meaning concept by an employer. What if the employer decides, “Well, wait a minute. I’ve read in all these travel guidances from the Centers for Disease Control and Prevention and other authorities that older people are particularly vulnerable to that effect if they contract Covid.” Even so, the employer can’t say as a blanket matter, “We’re not going to let our older workers do this business travel.” The Equal Employment Opportunity Commission has pretty clearly said you cannot simply lay off older workers or deny them opportunity or take any adverse action. Maybe even adverse action saying, “Hey, you can’t go visit these important clients.”
BTN: If I can add to that particular issue, what if an employee says, for whatever reason, “I can’t travel. It’s not even myself, but I have an older parent who lives with me and I don’t want to bring that back.” So does that then limit someone’s ability to do their job or access opportunities within the organization? Does that become an issue from a human resources or employment perspective?
Swartz: It certainly could. And that has close ties with the issue of [whether] the employer is going to require employees to take a leave or use paid time off when they are either afraid to come to work, for legitimate or not legitimate reasons. So employers need to take those things into consideration. Before we got into the Covid era, a lot of these issues turned on what was really an essential function of the job. When we’re talking about things like disability accommodations, that’s one of the major things you look at.
BTN: To that point, do you think it may get harder to say that travel is an essential function of a job?
Swartz: One of the areas where I do a bit of work is oil and gas. For example, oil and gas pipeline inspectors travel as an essential function of their job. But for a sales executive, is travel still the essential function that it used to be? Historically, and my dad is in sales and he would tell you, “Oh, you can’t do anything without looking at a person in their eyes and shaking their hand.” But we’ve kind of been operating for the last four or five months now through videoconferencing and things like that. So the notions about what’s really an essential function are changing.
BTN: What about when an employee wants to travel and the company agrees to allow it? The company also holds a responsibility to the employee’s well-being. Do you get involved in defining that kind of threshold?
Swartz: That’s something we’ve been thinking about as we’ve been looking at the data and tracking these new cases that have been filed. A lot of the cases are … sort of creative pleadings, because there’s no real road map to this stuff. So a lot of them do sound [like they would fall] into that negligence bucket that you just described. What is the duty of care here? What is the standard?
BTN: What are your clients doing?
Swartz: A lot of employers, both for legal reasons and very practical reasons, are working internally with their risk management groups. They’re working with their internal lawyers and external lawyers to develop communications with people who are creating those sort of travel requirements. And they’re putting together, for example, a communication that says, “Okay, so you’re traveling. What kind of personal protective equipment do you need to do that?”
They’re looking at what the different ways are you could travel. Maybe [the traveler] needs to go from Atlanta to Charlotte, and typically they would fly, but why won’t they just drive? And so employers are doing exactly those things. They’re saying, “Depending on where you go, here are the risks you might encounter. Here are the different ways to mitigate that.” The employer will put together—let’s call it a “travel pack”—where they have the face mask and some other amenities that the traveler might need. Those things are in play and employers are definitely doing those things.
BTN: From a legal perspective, would these kinds of mitigation processes and assistance be required?
Swartz: Whether, ultimately, [the employer] has the obligation to do that is an open legal question. But as a practical matter, I think employees generally appreciate that. I mean, it’s just a matter of communicating with your employees for practical purposes too. … [A lot of it is] just basic travel sense. Many of our international clients have even broader concerns when it comes to safety for traveling abroad. So this just becomes part of those types of travel policy.
BTN: There’s a federal relief package that seems to be stalled in Congress right now. But there’s an intention, at least on the Republican side, to include liability protections for corporations bringing people back to the office and back to work. The travel industry has been quite supportive of those measures. Do you foresee companies thinking they’ll get a free pass and maybe not take the proper precautions?
Swartz: That’s an issue that’s going to be hotly debated, of course. Most businesses recognize, particularly now, the real value in taking steps to protect employees. The way the U.S. Chamber of Commerce has posed advocacy efforts for those types of business liability protections, it’s not a blanket liability waiver. As stated so far—and we haven’t seen legislative language yet—but what has been advocated for are businesses who are complying with available guidance. Of course, that [guidance] can be different from place to place, but there are general trends that employers can hew to. In my experience, they’re all trying to do that. The biggest thing I, and many of my colleagues, have been contacted for is how to bring workers back to the workplace in the safest possible manner.
BTN: And business travel gets wrapped into that?
Swartz: I don’t see business travel as being a serious exception. Regardless of the potential liability protection, I think employers are going to go above and beyond to provide workers with resources to be safe when they travel. Obviously, a lot of those employers are equally concerned about things like worker’s compensation liability, because if an employee is required to go somewhere and they get sick, is it covered or not? That’s going to become an issue for worker’s comp lawyers and insurance companies. … Most employers, especially the ones requiring business travel, are just going to be very much in tune to safety regardless of what the legislation says.
BTN: I suppose the level of proof required for an employee to make the claim that he or she got sick on a business trip would be quite difficult to meet with the potential 14-day incubation period of Covid-19 illnesses.
Swartz: Yes. I agree those would be difficult standards to meet. That said, employers aren’t going to be like, “Oh, well, we’re not going to put in these practices on the hope that a court will say the plaintiff couldn’t prove causation.”
BTN: I imagine companies don’t want to go to court and, maybe worse, fall afoul of public opinion.
Swartz: Frankly, the litigation risk is manageable, but a public relations risk is unpredictable and not manageable.