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Colorado Expert Looks Into Whether Employers Can Ask Workers Not To Travel

DENVER (CBS4) - Employers can ask their employees not to travel during the holidays out of concern for spreading COVID-19, according to one legal expert. A University of Colorado Law professor says while there is some uncertainty about this issue moving forward from the pandemic, the clear challenge with the coronavirus is that the actions of one employee can affect others, unlike other issues regarding off-duty activities.

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"The ability of an employer to enforce a requirement like this, ultimately comes down to an employer's prerogative to fire," said Ahmed White, the Nicholas Rosenbaum Professor of Law Chair at the University of Colorado. "This issue, as it's come up until now, has almost always involved individual employees, one employee in the entire workplace who has made some kind of complaint."

White says the Off Duty Conduct Law of 1990 has been amended since then, but still primarily addresses situations where the employee's actions do not have a direct impact on other workers or the public. Someone choosing to protest lawfully for political reasons while off the job is one example of the purpose of the law. It has also come up in debate about an employee's right to use marijuana on their own personal time.

"What's interesting about this issue is that on the one hand, the kind of effects that a policy can have on an employee are significant," he told CBS4 on Monday. "They represent a significant kind of intrusion as what we have long regarded as employee's own business to go where they want when they're not work, to do what they want when they're not work."

But just like how the coronavirus has changed the workplace and required companies to pivot on policies for employees in the building and outside representing their businesses, the pandemic could affect protections for employees when their decisions outside the job will impact their time back on the clock. It is an area that White says will need to be explored beyond policies like requiring someone to get the COVID-19 vaccine, because that impacts their health and the health of others while they're working for the company.

"Given the nature of the pandemic, this has the potential to play out very differently with large numbers of employees all at once, and sometimes maybe in the same workplace, not only being affected by these policies but raising objections," White said on a video conference call. "That's something that given the nature of this issue hasn't come up until now."

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The policy can also affect employees differently, just how when certain workers choose to protest there could be a conflict of interest for the business compared to other members of the company. The possibility for enforcement could also be strengthened by the field, as some industries like healthcare will have a stronger case to argue the need for restrictions to keep the workplace safe.

Employers in general can argue for policies affecting their workers if it affects the company's obligation for safety on the job.

"The interests in helping contain a very dangerous global pandemic is also very strong and that's what make this issue, this controversy I think such an important one, such an interesting one," White said. "That interest in some businesses, in some lines of work than it is in others."

A requirement for notification before travel and precautions for employees when they return from a trip likely have even more protection for employers, since those policies will take place during shifts and at the place of business.

"Generally, employers have very broad prerogatives to regulate the workplace and to regulate what their employees do," he said. "All parties in cases like this, employees and employers would profit from being clear and transparent with each other."

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