Question:

Our small business is hanging on by a shoestring. Three of our employees attended a fourth of July barbecue. None of them wore masks. Another barbeque guest was COVID-infected.

One after another each of our employees became become ill, forcing most of our team to quarantine. It cost our small company fifty thousand dollars and we used up all our Paycheck Protection Program funds.

Our team includes several young, carefree employees who aren’t personally afraid of COVID. At least one has said, “I’d like to get it and not to have to worry anymore.” How can I make it clear to these employees that their individual decisions to engage in high-risk off-work behavior place everyone’s job at risk? I don’t want to shame those who attended the barbecue but need every employee to realize their choices have consequences.

As an employer, can we have a policy that asks employees to disclose when they’ve been exposed? Can we penalize staff if they deliberately conceal exposure? Can we have a policy that penalizes employees who falsely claim exposure and access FFCRA leave?

Answer:

Multiple laws governing an employee’s off-duty rights generally give employees freedom of action when not at work, even though this might include exposure to those with COVID-19.1,2 This means employers need a strong reason before asking employees intrusive questions unless the employee’s off-duty conduct could endanger the employee’s coworkers, customers or the employer’s business.2

COVID-19 may give employers that strong reason, as the employer needs to keep the workplace safe for all employees and their customers. The Americans with Disabilities Act allows employers to make sensitive medical inquiries of employees concerning situations that pose a direct threat to the health and safety of the employee, coworkers or customers and this may include COVID-19 infection or exposure.3,4 Employers may require employees to sign and acknowledge the employer’s policies on preventing the spread of COVID-19 by abiding by all state and local public-safety and health restrictions5. Employers, particularly those that provide direct-care to elderly or immune-compromised individuals may ask employees in a daily health survey if the employee has been in close contact with a presumptive or confirmed case of COVID-19. Employers may be able to send home employees who don’t practice social distancing or mask-wearing practices required by state or municipal order or who have been in close contact with someone who has tested positive.3,4

According to employment attorney Jon Hyman, “Employees need to understand they play an important role in keeping their co-workers and workplace safe. If they engage in high-risk activity outside of work such as traveling to a COVID hotspot, attending a mass gathering, or drinking at a crowded bar, they need to realize their conduct could have job-repercussions. An employer has the right to place them on a fourteen-day unpaid leave. I personally feel no sympathy toward employees forced to sit on the sidelines for a couple of weeks without pay because they didn’t take personal responsibility to keep safe during a global pandemic. Employers, however, need to make sure employees fully understand the potential consequences of their out-of-work behavior to avoid misunderstandings.”

Attorney Hyman adds, “An employer can and should discipline or fire an employee who conceals exposure; however, they need to make crystal clear in their policy the obligation to report and the consequence for concealing exposure.”

An employer’s policies can also include rules outlining consequences for providing false documentation. These policies would allow you to fire an employee who knowingly falsely reports he has COVID-19. An employer who suspects an employee has falsely claimed COVID-19 infection to access Families First Coronavirus Response Act (FFCRA) leave can ask the employee to provide documentation and can then contact the medical provider to determine its legitimacy.

Finally, you can use validated news articles to educate employees. While we hope all employees will mask up and socially distance to protect themselves and others, some employees may only respond to what directly impacts them. You can provide these employee articles that document that those who experience even a light brush with COVID-19 may acquire COVID as a long-companion in the form of ongoing limitations such as fatigue, shortness of breath, heart palpitations, and discomfort with physical activity6.

1https://www.nolo.com/legal-encyclopedia/off-duty-conduct-employee-rights-33590.html

2https://www.bizfilings.com/toolkit/research-topics/office-hr/employer-control-of-employee-offduty-conduct-is-limited

3Should You Monitor Workers Who Aren’t Social Distancing Off Duty? https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-off-duty-not-social-distancing.aspx

4https://www.arnoldporter.com/en/perspectives/publications/2020/04/employee-privacy-with-respect-to-covid

5 https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-facilitate-return-to-work.aspx

6https://www.advisory.com/daily-briefing/2020/06/02/covid-health-effects

© 2020, Lynne Curry

Lynne Curry is the author of “Beating the Workplace Bully” (AMACOM, 2016) and “Solutions” (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at lynnewriter10@gmail.com or follow her on twitter @lynnecurry10.

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