Picture this: COVID-19 cases are surging. Your state or city is in full lockdown mode. That means, among other things, that outdoor gatherings of more than 50 people aren’t allowed. So, it disturbs you to turn on the Sunday news and see hundreds of people crowding together to demonstrate right in the middle of downtown. And then it gets personal. You recognize one of those demonstrators. She’s one of your office’s employees! What the heck is she doing there?! And, gulp, you also notice that she’s not wearing a mask! Now what? Can you discipline the employee for participating in the illegal demonstration and not wearing a mask?
Off-duty conduct, employee discipline and COVID-19
The statement that what employees do when they’re away from work is none of your business is a myth. The truth is that off-duty conduct may be grounds for discipline when it does damage to a business, such as by hurting an employer’s reputation, rendering the employee ineffective and/or making others unwilling to work with the employee.
The problem is that it’s unclear how these standard rules for normal times would play out in the COVID-19 context. And that uncertainty will remain in place unless and until courts, arbitrators and tribunals begin deciding cases addressing whether an employer may discipline an employee for not following COVID public health guidelines while they’re away from work.
Of course, offices could make a strong argument that partaking in a political demonstration without a mask during a pandemic would be grounds for discipline, especially since the demonstration violates current COVID-19 restrictions on public gatherings. But there’s no assurance that the office would be able to sell that to a judge or arbitrator. Consider the potential problems in our political demonstration scenario:
- It would be hard to show that employee hurt the office’s reputation because of the unlikelihood that anybody watching reports of the demonstration would have noticed the employee among the crowd, let alone recognize that she works for your office;
- Being mask-less at the demonstration would clearly enhance her risks of getting COVID-19, the results of which would be to undermine the employee’s effectiveness; but it would be almost impossible to prove that participating in the demonstration actually caused her infection; and
- While other office workers might be unwilling to work with the employee if they knew she was at a public demonstration without wearing a mask, how likely would they be to actually learn that she engaged in this conduct?
Bottom line: Under current case law, an employee’s failure to follow COVID-19 protocols while off-duty may not, by itself, be sufficient grounds for discipline. There may also be constitutional barriers to discipline, depending on what the employee was doing. Thus, for example, discipline for participating in a political demonstration—even an illegal one—could violate an employee’s free speech rights; discipline for attending religious services or funerals could violate her religious rights.
Mandatory self-isolation
Still, while discipline may be tough to justify, taking part in a large demonstration without a mask in violation of current restrictions on public gatherings is clearly dangerous, even if it occurs while the employee is off-duty. After all, because COVID-19 cases are often asymptomatic, there’s a pretty good chance that at least some of those demonstrators had the virus. And if the employee was in close contact with them, the employer not only can but probably should bar her from coming to work on Monday and require her to go into self-isolation immediately (unless it can effectively isolate her within the office, such as by scheduling her for a shift when nobody else is on duty and/or making her work in an isolated office, room or work station).
However, the employer would have to treat mandatory self-isolation as a health and safety measure rather than a disciplinary action. In effect, the self-isolation would constitute unpaid leave rather than a suspension or even termination. Leave might even have to be paid depending on the office or standards requirements of the particular jurisdiction or the terms of leave policies if your office provides paid leave when it’s not legally required.
Implement on- and off-duty social distancing policy to protect your office
Although the case law hasn’t caught up, the fact is that during these times of pandemic, the things employees do when they’re away from work do have health consequences for themselves and others at the workplace. That’s why you should implement a policy requiring office employees to follow social distancing, mask and other COVID public health guidelines not only at the workplace but also when they’re off-site, even when they’re off-duty. Your policy should require employees to self-disclose any off-duty conduct that violates public health guidelines or your social distancing policies had it occurred at work to their supervisors before reporting to work for their next shift. Last but not least, require employees to report violations committed by others that they witness or know about and assure them that they will suffer no reprisals if they do so.