My employer sent a two-part email to every employee last week. “As you know we’ve had a local spike in COVID-19 infections. The health department has provided a list of the establishments, primarily bars, where COVID-19 individuals spent extended time. The health department asks that anyone who was in these businesses during these times monitor themselves for symptoms, check their temperatures twice daily for fourteen days and avoid potentially exposing others who fall into high-risk categories for COVID-19 vulnerability. Please comply with this guidance.”
That was okay, but then the email obligated me as an employee to offer up personal information. “We have learned that a bartender at (named) bar has tested positive and was serving customers on ____ date and between ____ p.m. and ____ p.m. during these times. If you were possibly exposed at this bar during these times, you must immediately inform your supervisor who must immediately inform HR.”
Can my employer require me to divulge where I was on my own time, time not paid for by my employer? Don’t I have the right to privacy? Can my employer make me self-quarantine even though I have no symptoms? What happens if I was at that bar during those times and don’t admit it, but someone saw me there and tells my employer? Can my employer fire me? Might this go further, and my employer fire bar-going employees because they consider it high-risk behavior?
Multiple laws prohibit private-sector employers from intruding on their employees’ outside-of-work lives.1 Most states guarantee their citizens the right to privacy within reasonable limits and multiple courts allow lawsuits based on the claim that an individual’s privacy was invaded when one individual or entity unreasonably and offensively intruded into another’s private affairs.
This means your employer needs to have strong reasons to ask intrusive questions. Further, an employee’s outside-of-work conduct is generally off-limits for employers unless there’s a relationship between the off-duty conduct and the employer’s business, for example, if the misconduct poses a risk to the business.2
Employers that want to limit an employee’s off-duty conduct need to differentiate between lawful and unlawful off-duty conduct. Many laws prohibit employees from discriminating against employees who engage in lawful activities when not on paid time, such as when employees participate in demonstrations. At the same time, employers have a duty to keep the workplace safe, which potentially gives them a reason to interfere with an employee’s off-duty conduct that endangers the employee’s co-workers or customers.
According to the Society for Human Resource Management’s (SHRM) May 19th article, “Should You Monitor Workers Who Aren’t Social Distancing Off Duty?”3, employers that monitor off-duty conduct may be legally permitted to send employees home who don’t follow safe practices, such as social distancing when off duty, particularly if social distancing is required by a state or local order. Attorney Laura Jacobsen, quoted in the article, states that an employer that learns an employee hasn’t socially distanced off duty may be able to ask an employee to stay home for 14 days.4 Jacobsen adds that employers may ask employees in a daily health survey if they “have been in close contact with a confirmed or presumptive COVID-19 case.” This is particularly true for employers that provide direct-care services to immune-compromised individuals or the elderly.
In the same article, attorney Michelle Anderson states that an employer that learns an employee “is experiencing symptoms, has tested positive or been in close contact with someone who has tested positive or has symptoms awaiting test results,” may require the employee to isolate from the workplace. Another SHRM article states that employers may also require employees to sign and acknowledge the employer’s policies on preventing the spread of COVID-19 by abiding by required safety restrictions.4
As your email shows, employers can damage employee morale when they step too far over the line into monitoring an employee’s off-duty conduct. Most employees, however, understand when an employer asks them to self-monitor yourself and immediately report any COVID-19 symptoms, to take their temperature every morning before coming to work and to stay home if symptoms appear. Employers can also educate their employees about the impact their behavior can have on coworkers and the business, for example, the business might be forced to temporarily shut down if a COVID-19 infected employee comes to work, leaving all employees temporarily without their jobs.
Should You Monitor Workers Who Aren’t Social Distancing Off Duty? 3https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-off-duty-not-social-distancing.aspx
© 2020, Lynne Curry
Lynne Curry authored “Solutions” and “Beating the Workplace Bully” (both rated with 4.8 out of 5 stars). Send your questions to her at firstname.lastname@example.org or follow her on twitter @lynnecurry10.