Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.
Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?
The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.
Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?
Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.
What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?
In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.
In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.
Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?
This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.
However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.
What will happen next?
I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too
This is not legal advice pertaining to specific factual situations.