What to Do When Off-Duty Employees Aren’t Social Distancing

Allen Smith, J.D. By Allen Smith, J.D. October 29, 2020
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group at a party

As the holidays approach, employees may grow weary of taking precautions related to the COVID-19 pandemic and may become more social. What can employers do if workers let their guards down and aren't social distancing or wearing masks in public away from work?

They can educate staff about the risks of not following guidelines from the U.S. Centers for Disease Control and Prevention (CDC), experts say, and be aware of the legal risks of disciplining workers for off-duty conduct.

Discipline raises possible compliance concerns under "lawful off-duty" statutes and anti-discrimination laws. There also are morale considerations with an employer being too firm or too lax in responding to workers' concerns about colleagues who aren't social distancing.

In addition, employers should be aware of their compliance responsibilities when asking employees to self-quarantine after not wearing masks, as potential Fair Labor Standards Act (FLSA) issues could arise.

Lawful Off-Duty Statutes

Before taking any action regarding employees' off-duty activity, it's important for employers to understand applicable state and local laws, said Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City.

Some states—including California, Colorado, Illinois, Nevada, New York, North Dakota and South Carolina—have laws protecting employees' lawful off-duty conduct. "Disciplining an employee for not wearing a mask while off duty or, for example, attending large events could violate these laws," said Lindsay Burke, an attorney with Covington & Burling in Washington, D.C. "But if a jurisdiction with an off-duty law has an executive order or health order requiring the wearing of masks or prohibiting large gatherings, then not wearing a mask or attending a large gathering could in fact be considered unlawful conduct and off-duty protections probably would not apply."

If an employer required an employee to sign a certification stating that he or she is following all state directives, even when off duty, and evidence surfaced that the employee wasn't following them, the employer could discipline him or her for lying, Garofalo said.

But rather than jumping to conclusions, advised Carolyn Rashby, an attorney with Covington & Burling in San Francisco, employers should ask questions if an employee was not social distancing or wearing a mask when off duty. She suggested the following inquiries:

  • What jurisdiction is the employee in?
  • What are the details of the incident?
  • How did the employer learn of the incident and how reliable is the source?
  • Are there any other issues with this employee that might be relevant?
  • How has the employer handled similar situations?

"It's not going to be appropriate to impose discipline if an employee was seen in one picture not wearing a mask in a small group outdoors. It could be that the employee just took off the mask for a few minutes," she noted. "On the other end of the spectrum, imposing a quarantine or taking disciplinary action might be warranted if an employee willfully attended multiple large indoor gatherings and refused to wear a face mask each time."

Discrimination

"Only a few states have laws banning employment action based on lawful off-duty conduct, but the practical question is does the employer have the time, energy or ability to police off-duty mask wearing and social distancing by employees in a consistent way?" asked Karla Grossenbacher, an attorney with Seyfarth in Washington, D.C. "Haphazard and selective enforcement of a policy to discipline or force quarantine on someone who is brought to their attention or who the employer happens to see in the act is problematic and can lead to claims of differential treatment."

Garofalo said, "Practically speaking, it would likely be very difficult to properly monitor all employees' activities and consistently enforce such a policy." The policy may prompt employees to only tattle on workers of certain protected classes, or only those who have social media accounts may be caught misbehaving. This uneven policing could lead to a disparate impact result, she noted.

Too Strict vs. Too Lax

"Such a result is likely to have a negative impact on employees who may believe they are being overly policed in their personal lives and potentially result in a disgruntled employee rushing to share their displeasure over social media and/or with the press," Garofalo said. She instead recommended educating employees about the importance of social distancing and wearing masks.

"Prohibiting employees from engaging in activities that do not violate the law or an employer's specific policy is dangerous," said Linda Bond Edwards, an attorney with RumbergerKirk in Tallahassee, Fla.

Monitoring off-duty conduct consistently and making employees self-quarantine every time there is an alleged incident of not social distancing outside of work could place an undue hardship on the employer, said Lisa Gingeleskie, an attorney with Lindabury, McCormick, Estabrook & Cooper in Westfield, N.J.

But Tory Summey, an attorney with Parker Poe in Charlotte, N.C., said that if an employer fails to respond to concerns of co-workers who feel that they are being put at risk by another employee's off-duty conduct, then employees could pursue complaints with federal or state workplace safety authorities, such as the Occupational Safety and Health Administration.

FLSA

Wage and hour considerations must be reviewed for an employee who is ordered to self-quarantine, said Jonathan Yarbrough, an attorney with Constangy, Brooks, Smith & Prophete in Asheville, N.C.

If the Families First Coronavirus Response Act's paid leave provisions don't apply, the employer should consider whether it must pay the worker under the FLSA.

"If the employee is nonexempt and cannot work from home, then there is no pay," he said. "If exempt and [he or she] can—and does—work from home, then you have to pay the employee."

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Exemplary Behavior

Employers that model best practices in the workplace are most likely to encourage workers to comply with mask-wearing rules and social distancing when off duty, said Brooke Ehrlich, an attorney with Weiss Serota Helfman Cole & Bierman in Fort Lauderdale, Fla.

Employers should "encourage their employees to be safe and regularly emphasize and practice their real commitment to maintaining a safe workplace," said Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago.

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