COVID-19 Business Travel Updates for US, Germany and EU

Due to the availability of COVID-19 vaccines, many countries have recently decided to lift or change their entry restrictions to allow entry to travelers who have recovered from COVID-19 infections or had been vaccinated. Here is an overview of some of the current entry requirements for international travel.

Access to the United States

As of November 8, 2021, individuals will be allowed to re-enter the United States from Europe. In the United States, travelers from Brazil, China, India, Iran, Ireland, the Schengen area (26 countries), South Africa and the United Kingdom have been banned for 20 months. A proclamation issued by President Joe Biden on October 25, 2021 – “A Proclamation to Promote the Safe Resumption of Global Travel During the COVID-19 Pandemic” – ended these access restrictions and the need for national interest exemptions (NIE ) on the restrictions. Travelers from most countries (a recent US travel ban from eight African countries went into effect on November 29, 2021) may enter the United States if they are fully vaccinated and present negative coronavirus test results (via RT-PCR or antigen testing) that are no more than three days old at the time of departure.

Travelers must prove to their airlines that they have been fully vaccinated with internationally recognized vaccines before departure. Currently, the United States recognizes the vaccines Pfizer-BioNTech, Oxford-AstraZeneca, Oxford-AstraZeneca/Covishield, Covaxin, Moderna, Johnson & Johnson/Janssen, BIBP/Sinopharm and Sinovac vaccines. A traveler’s last vaccination must have taken place at least 14 days before the planned date of travel. The United States accepts the EU Digital COVID Certificate as proof of vaccination.

Exempt groups include individuals making diplomatic or governmental overseas travel, children under the age of 18, and individuals who cannot be vaccinated with a COVID-19 vaccine for documented medical reasons. Individuals exempt from the October 25, 2021 proclamation requirements may enter the United States without being fully vaccinated, but must be quarantined for seven days upon arrival and tested for COVID-19 infection three to five days after entry.

Regardless of the COVID-19-related entry requirements, all travelers will still require an Electronic System for Travel Authorization (ESTA) entry permit issued by the U.S. Customs and Border Protection (CBP). The Dutch DPA advises travelers to apply for an ESTA authorization online at least 72 hours before departure.

Requirements for entry into the European Union

The European Union (EU) has a common approach to travel from third countries to EU Member States. Admission requirements are constantly being adapted to the pandemic situation as international travel gradually opens up. In principle, anyone from a third country who has been fully vaccinated with a vaccine approved by the European Medicines Agency (EMA) (BioNTech-Pfizer, Moderna, AstraZeneca and Janssen-Cilag) is currently allowed to enter the European Union. The last vaccination must have taken place at least 14 days before the planned entry.

EU citizens and residents, as well as their family members, are allowed to enter EU Member States without being fully vaccinated. Further exceptions apply to persons for whom absolutely necessary reasons for entry exist. Among other things, there may be “absolutely necessary reasons” for highly qualified third-country workers if their labor is economically necessary and their work cannot be postponed or performed abroad.

The EU also maintains a list of countries where the epidemiological situation has improved sufficiently (the so-called “EU White List”), so that access from these countries is possible regardless of a person’s vaccination status. This list is continuously updated according to the epidemiological situation. The United States is currently not whitelisted by the EU, so entry from the United States is only possible for fully vaccinated individuals.

Each EU member state can set its own additional entry requirements. The EU’s “Re-open EU”, an information center for information on the pandemic-related measures of the EU Member States, provides an overview of the quarantine and testing requirements of the individual countries.

Germany Entry Requirements

All travelers to Germany from non-EU whitelisted third countries who are not EU citizens or residents must be fully vaccinated. In exceptional cases, access is possible if absolutely necessary.

In addition, all travelers aged 12 years or older must present a vaccination certificate. Before crossing the border, proof of vaccination or recovery, or a test result that is negative for infection (e.g. an antigen test not older than 48 hours or an RT-PCR test not older than 72 hours) , be submitted for inspection to the carrier or at the request of the Federal Police.

Digital travel registration is also required for previous stays in high-risk or virus variant areas. The Robert Koch Institute provides an up-to-date list of all high-risk areas and virus variants.

Unvaccinated or recovered travelers entering from risk areas must also present a negative test upon entry and be quarantined for 10 days. The home quarantine can be ended prematurely if a negative test result is presented again five days after arrival.

At the moment, traveling from an area with virus variants is not possible, as there is a travel ban for countries where virus mutations are widespread. Access is only possible in a few exceptional cases (for example, for German nationals and persons with residence and an existing right of residence in Germany, as well as their immediate family members). Regardless of vaccination or recovery status, these travelers are required to digitally register their entry, submit negative test results upon entry and quarantine for 14 days. Only vaccinated and recovered individuals may shorten their quarantine period by presenting further negative test results five days after entry.

Employer questions about employee vaccination and recovery status

This extensive regulation raises the question of whether an employer may inquire about an employee’s vaccination status, or whether the employee has recovered from a COVID-19 infection in connection with an upcoming business trip.

The vaccination and/or recovery status of an employee, under 9 (1) of the EU General Data Protection Regulation (GDPR), is considered health data and thus protected personal information according to Art. An employer may only request and process this data if there is a legal basis for doing so. If a business trip requires proof of an employee’s vaccination against COVID-19 (for example due to entry restrictions), an employer can request and process this information from the employee in individual cases. However, employers may only request the information in the context of specific business trips and may not retain the information for any other purpose.”

The COVID-19-related entry regulations of many countries can largely determine the feasibility of a considered business trip, as the prospect of international business travel is likely to depend on the vaccination status of the employees involved. This situation can lead to a legitimate interest on the part of the employer to inquire about the employee’s vaccination status, because otherwise the employer would not be able to determine whether a particular employee meets the entry requirements of the destination country. Only by inquiring about the vaccination status can the employer ensure that the employee is not sent away at the border, i.e. that the employee can fulfill the obligation to perform the contractually agreed work in the context of the business trip.

Whether an employer’s question about an employee’s vaccination status is legitimate is therefore a case- and fact-specific investigation, which depends primarily on the eligibility rules of the destination country. If the destination country requires full vaccination to enter, it may be permissible from a data protection standpoint to ask about an employee’s vaccination status.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XI, Number 351

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