The impact of COVID-19 on international travel seems to be changing day-by-day as travel restrictions are announced at the state, federal and international levels. In addition to travel restrictions, the U.S. Department of State (“DOS”) recently announced that it is suspending all routine visa services at U.S. embassies and consulates abroad, in addition to issuing a Level 4 Travel Advisory discouraging all international travel at this time. These restrictions compliment the U.S., Canada and Mexico border closure announcements and the previously restricted travel for foreign nationals from 26 European countries, China and Iran. Given President Trump’s March 29, 2020 directive to continue social distancing until at least April 30, 2020, the dates provided in the various travel advisories, border closures, etc., are likely to be extended. Here is what we know:
DOS has Issued a Level 4 Travel Advisory
- all international travel is discouraged; and
- U.S. citizens and Law Permanent Residents (Green Card holders) who are currently outside of the country must return to the U.S. immediately or be prepared to reside outside of the U.S. indefinitely. Depending on recent travel history, the returning travel may be subjected to mandatory 14-day quarantine.
U.S. – Mexico Border Closure – In Effect until April 21, 2020 (Likely to be extended.)
On March 20, 2020, President Donald Trump announced that the U.S. – Mexico border will close to all non-essential travel for 30 days.
- Effective March 21, 2020, the U.S. and Mexico will temporarily restrict all non-essential travel across the U.S.-Mexico land border for 30 days.
- Trade and commerce will continue.
- Examples of “Essential Travel” include but are not limited to travel for medical purposes, to attend educational institutions, for emergency response/public health purposes and lawful cross-border trade.
- Non-essential travel will be temporarily suspended for 30 days.
U.S. – Canada Border Closure – In Effect until April 21, 2020 (Likely to be extended.)
- Effective March 21, 2020, the U.S. and Canada will also temporarily restrict all non-essential travel across the U.S.-Canada land border for 30 days.
- “Non-essential” travel is travel that is considered tourism or recreational in nature.
- Canada announced that U.S. citizens and Canadian citizens who cross the land border daily to perform “essential work” or for other urgent or essential reasons will not be impacted by the closure.
- Commercial trade and commerce such as supply chains, including trucking, are NOT impacted.
What if an employee needs to travel internationally while the restrictions are in place?
In all circumstances, avoid travel to travel-restricted countries named above at this time unless you are willing to comply with the restrictions in connection with the foreign government’s requirements, and those established by the U.S. government upon your return. Additionally, ensure you meet the exclusions from the travel restrictions listed above.
What documents should the employer advise its traveling employee to carry if travel is required?
Ensure the traveler has all required documents for re-entry to the U.S. (passport, valid visa, etc.). Advise traveling employees to carry clear travel history documentation that demonstrates compliance with the travel restriction upon entry to the U.S., or when traveling from state-to-state.
If possible, employees should carry Employment Verification letters stating the terms of their employment and the essential nature of their employment (and how their employer may continue to operate under the various “essential business” definitions that may vary by state or country. Employees traveling from one state to another, or traveling from home to the work place would be well-advised to carry with them an Employment Verification letter.
What should a traveler expect while traveling?
Travelers should expect possible secondary inspection upon re-entry to the U.S., as well as possible delays for health screenings in other countries, all requiring extra time and likely creating travel delays. Whether traveling domestically or internationally, one should continue to monitor flight availability. Given the nature of this evolving global pandemic and the frequent cancellation in scheduled flights, you should check in with your airline on a daily basis.
Before traveling, the traveler should check for travel restrictions to the country (s)he is visiting as well as travel restrictions in place in any country through which (s)he will transit.
Be mindful that circumstances could change suddenly or dramatically between the date of departure and date of return, so be prepared with contingency plans.
Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
Because employees traveling to affected areas or countries may come in contact with people infected with COVID-19 during their stay or even while in transit, employers should, as a precautionary measure, restrict business travel of employees. Indeed, the government has advised against all non-essential travel.
The travel restrictions currently in place may create barriers for employees returning to India. Employees returning to India may be subject to quarantine for 14 days.
What should an employer do if a traveling employee shares that s(he) plans to travel to an affected area?
If the employee’s travel is for work purposes, the employer should either cancel or postpone such travel to any affected area. However, if the travel is for personal reasons, then the employer should strongly recommend the employee not travel.
Despite the employer’s best efforts to discourage travel, if an employee travels anyway and returns, the employer should ask that employee to self-quarantine and not come to work for 14 days, and/or until the employee tests negative for COVID-19 infection. The employer may also require medical documentation certifying the negative test results before allowing the employee to re-enter the workplace. This might be difficult to enforce given the difficult of obtaining a testing kit, and the state’s guidelines for permitting a test.
How should an employer handle employees who have family members who have travelled to affected areas?
The employer should ask the employees to self-report if any of their family members have travelled to any COVID-19-affected areas. Once the employee reports that their family members have travelled abroad or to highly impacted states or regions of the U.S. where COVID-19 infection is substantial, the employer should ask that the employee self-quarantine and not come to work for 14 days, and/or until the employee tests negative for COVID-19 infection. The employer may also require medical documentation certifying the negative test results before allowing the employee to re-enter the workplace. This might be difficult to enforce given the difficult of obtaining a testing kit, and the state’s guidelines for permitting a test.
What Does This Mean for Employers?
Impact of International Travel Restrictions
Employers should prepare for the possibility that employees may be unable to return to the United States because of travel or visa restrictions in response to coronavirus. In this circumstance, employers have the option to allow the employee to work remotely, utilize vacation and sick time, suspend employment or terminate employment.
Employers who allow foreign national employees to work remotely while they are abroad should consider the employment laws of the country where the employee will be performing the work. If an employee is performing the work in their country of citizenship, generally this work should not require additional authorization. However, employers should consult with corporate and tax counsel to confirm that this type of arrangement will not create a “tax presence” in the foreign country, thus subjecting the employer to unanticipated consequences in the future. Employees working in a third country would be subject to the employment and immigration laws of that country.
Employers could also encounter a scenario in which a foreign national who has been offered employment in the United States is not able to enter the United States to begin employment due to travel or visa restrictions. Employers have the option to withdraw the offer, allow the employee to work remotely, or hold the offer open for as long as is practicable. All considerations discussed above regarding these options would similarly apply in this situation.
Before traveling abroad, please review the U.S. Department of State’s up-to-date country-specific list of travel advisories.
If you have any questions, please feel free to reach out to us.