BY MATT DAUS
Business travel has historically been essential for many corporations and is likely to slowly accelerate in the coming months, fueled by greater vaccination rates, significantly relaxed travel restrictions in most states, and pent-up travel demand. The U.S. Centers for Disease Control and Prevention (CDC) still warns against non-essential travel at this time, concerns about more contagious variants of the virus and questions about the current vaccines’ effectiveness in the long term linger. For operators and corporate travel buyers, understanding the applicable duty of care as business travel returns is essential for mitigating the risk of lawsuits.
It all comes down to complying with federal, state, and local laws regarding preventing transmission of the virus, such as mask laws, and following guidelines from the CDC and state and local public health officials specific to passenger transportation, such as vehicle cleaning protocols. The day after he took office, President Joe Biden signed executive orders requiring face coverings be worn on all forms of public transportation, which was recently extended through September. Operators should also engage with travel buyers and ensure affiliate agreements are updated to reflect changes to guidance.
IATR’S Regulatory Practices and Model Regulations for COVID-19 Health, Safety, and Resiliency are available hereDuty of Care & Liability As a general rule, employers are required to provide working conditions that are reasonably safe for employees, considering the nature of the employment, and to warn them of risks of unsafe conditions. The duty is to act as a reasonably prudent person would act under the circumstances, and these actions will be judged against established federal and state guidelines and regulations. Travel managers will likely make changes to their vendor contracts as more employees return to work and travel.
The CDC has COVID-specific resources and recommendations for those who must travel, including information about which travel activities are safer and steps to protect against contracting or transmitting the virus. If the transportation manager and buyers are both following the CDC guidelines and other state and local public health guidelines, it would be difficult to establish that the employer breached its duty of care. Companies should also have a written policy with COVID protocols specific to travelers—and ensure they are followed. Additionally, operators and travel managers may wish to have travelers sign a waiver specifying the company will not be held liable if the traveler contracts COVID while on business travel.
Workers’ Compensation Laws Workers’ comp does not cover routine community-spread illnesses like a cold or the flu, but COVID is being treated differently. According to the National Conference of State Legislators, 17 states and Puerto Rico have taken action to extend workers’ comp coverage to include COVID as a work-related illness. A handful of states have created a rebuttable presumption of coverage for certain workers who contract the virus. Only California and Wyoming cover all workers who are not exclusively working from home; Minnesota, Utah, and Wisconsin limit coverage to first responders and health care workers; and Illinois, New Jersey, and Vermont cover all essential workers.
COVID transmission cases against employers have already been filed, but many have been dismissed. Laws vary from state to state, but generally the only exceptions giving an employee the right to sue are intentional torts or gross negligence, both of which are high bars. So far, we have not seen a case involving a claim of catching the virus during a business trip.
Steps to Protect Your Passengers & Mitigate Liability Risk Operators and their affiliates will be judged on whether they complied with applicable federal, state, and local mandates, guidelines, and regulations regarding COVID mitigation. As of the date of this writing, the CDC’s industry-specific guidance was last updated in late January, which is available here. While less common, a few regulators have made it mandatory for licensees to comply with additional safety measures including the California Public Utilities Commission, the Nevada Transportation Authority, and the Philadelphia Parking Authority. Be sure you are in compliance.
The guidance could change as more people are vaccinated, which also raises the question of mandatory vaccination for your team. According to guidance from the U.S. Equal Employment Opportunity Commission, employers can legally—under these laws—require their employees to get the COVID vaccine if working without it would pose a “direct threat” to others in the workplace. However, reasonable accommodation should be made for those who either cannot, or will not, be vaccinated due to a disability (under the Americans with Disabilities Act) or a sincerely held religious objection (under Title VII of the Civil Rights Act).
Regarding ICs, the terms and appropriate language of the contracts that create and govern the relationship between the IC driver and the company will dictate whether a vaccine mandate is permissible. For current IC drivers, an existing contract may need to be amended, and because this could represent an aspect of control regarding worker classification, this should be reviewed by counsel.
Your affiliate agreements should also be updated to reflect those laws and guidance, which can be updated as COVID conditions change. Companies may consider adding a health and safety requirement whereby the affiliate agrees to comply with and ensure that any employee or IC driver engaged by the affiliate will comply with or approve any and all of those requirements. The agreements should hold the company harmless for COVID transmission-related incidents. Operators should additionally update their driver agreements similar to affiliate agreements, where the burden is on the driver, not the transportation company, to clean and disinfect the vehicle as required by all applicable guidelines or requirements.
COVID Liability Shields Some states have enacted liability shields to protect businesses that comply with applicable health and safety regulations from COVID-related lawsuits. Like the vaccines, these shields do not guarantee immunity from all lawsuits. First, most states only shield health care providers, health care facilities, and first responders. There are some exceptions, such as Louisiana and Oklahoma, which limit liability related to exposure to COVID for all businesses that substantially comply with applicable procedures. Arkansas covered all businesses, but such protection lasted only as long as the state’s COVID emergency order remained in effect. Other state shield laws have also lapsed, including Connecticut and D.C., while others contain expiration dates this summer, such as Georgia. In addition, there are limitations on liability. Generally, immunity does not apply if the covered business acted with gross negligence, recklessness, or intentional misconduct. Because these laws differ from state to state and continue to evolve, travel managers should regularly check their particular state and local laws.
The comeback of the corporate travel industry is unlikely to be a straight line up, and the return to normal will not be like flipping a switch, especially since it will be a challenge to find drivers through the fall (enhanced unemployment is expected to expire September 2021). This is the time when transportation companies should be in close contact with affiliates and their corporate travel manager clients in order to assess their needs, comfort level with compliance, and to ensure that all agreements, processes, and paperwork is in place to mitigate liability and ensure travel safety for all. An ounce of prevention in this realm will lead to a ton of cure! [CD0521]
Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.
Matt Daus is a partner with the law firm Windels Marx, president of IATR, and a leading authority on ridesharing apps. He can be reached at firstname.lastname@example.org.