The 6 Things Labs Need to Know About the Trump Travel Ban

Although the first Trump travel ban didn't survive, a new version is already in the works. Although we don't yet know the details, the expectation is that the new travel ban will look a whole lot like the old but for what one Senior White House Policy Advisor describes as some "technical changes" to satisfy the courts. One thing we do know is that the new travel ban will have a major and immediate impact on laboratory operations. Here are the six things lab managers need to know to meet the challenges posed by the travel ban.

1. What Is It?
The so called "travel ban" is an Executive Order (EO) issued on Jan. 27 temporarily barring individuals from designated countries (restricted countries) from entering the US. The EO imposed three different entry bans:

2. Does It Affect Your Lab?
The ban affects you directly if, like many other labs, you have employees (or want to recruit employees), contractors or business associates who are citizens of the restricted countries.

3. What Is Its Practical Effect?
The term "travel ban" is misleading. Technically, the EO doesn't prevent anybody from leaving the US; it simply bars them from getting back into the country later. Practical impact on your lab:

• It would deter individuals from restricted countries who are currently in the US, including your own employees, contractors and business associates, from leaving the country, e.g., traveling to an international conference;

• It would bar employees, contractors and business associates from restricted countries who are currently abroad from entering the US to do business with you.

The EO does not deport anybody; but there are concerns that subsequent orders may.

4. Does It Cover Green Card Holders?
Although having a green card will help individuals from restricted countries to gain entry into the US, it isn't a guarantee.

Explanation: On Jan. 29, the Department of Homeland Security issued a press release stating that in applying the EO it will "deem the entry of lawful permanent residents to be in the national interest." But the very next sentence opens a loophole. "Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent residence status will be a dispositive factor in our case-by-case determinations" (emphasis added).

Translation: Although green card holders will get the benefit of the doubt, the DHS can still bar entry if it has evidence that the individual poses a serious threat.

5. Does It Cover Dual Citizens?
The EO doesn't apply if the citizen of the restricted country is also a legal US citizen. However, it does cover dual citizens of both a restricted and nonrestricted country outside the US, including a US ally like the UK, Canada, Australia or Germany.

6. What Should You Do about It?
If like so many labs, you have employees (or business associates) from restricted countries, you want to keep them inside the US. But you need to be careful about how you do that:

Wrong: While it may be well intentioned, a policy of not letting employees from restricted countries travel abroad would likely be deemed a form of nationality discrimination banned by federal Equal Employment Opportunity laws. The fact that the policy is designed not to discriminate but protect employees against themselves is no defense. "In the area of civil rights, employees [must be left to] make their own personal risk decisions" without the employer's "paternalistic" interference, according to one court.

Right: Recognize that you can't prevent employees from travelling and respect their right to make their own personal decisions. But do everything in your power to encourage them to make the right decision. One of the first things to do is cancel all international trips involving affected lab personnel through the period in which the travel ban remains in effect.

Takeaway: Issue Written Statement of Support. In addition, you might want to do what so many other leading companies across the US have done in response to the EO and issue a written statement to affected employees. Although there is no one-size-fitsall formula, your statement should:

• Express your support for immigration and employees affected by the EO;

• Explain the EO and risks of travelling abroad while it remains in effect;

• Make it clear that you will neither require nor expect affected employees to engage in international business travel for as long as the EO is in effect; and

• Assure affected employees that they will suffer no adverse employment consequences for not travelling.