Normally at this time of year, employment attorneys are publishing articles and sending reminders to clients about how to host their holiday parties without creating liability for the company. This year, with the ongoing surge of COVID-19 cases and accompanying government restrictions on travel and social gatherings, most employers are instead concerned about how their employees are celebrating the holidays outside the workplace, with their families and friends. As recent news articles have highlighted, experts have attributed the recent surge of cases to smaller gatherings of family and friends where social distancing guidelines are less rigidly followed. As a result, many employers who have returned to in-person work are concerned about the risks of employee-to-employee transmission brought about by employees attending social events over the holidays or traveling to high-risk areas.

First, a word of caution – regulating employees’ private conduct is an extremely sensitive issue. An employer’s ability to discipline employees for legal activities outside of work varies from jurisdiction to jurisdiction and, depending on where your employees live or your business is located, employees may be legally protected from discipline even if their conduct demonstrates poor judgment or creates a risk for their coworkers. However, if the employer is located in a jurisdiction that has implemented restrictions on travel or the size of social gatherings, an employer would have greater leeway in implementing policies addressing conduct outside of work when such conduct violates a legal standard. Similarly, complaints about disparate treatment may arise when some employees are disciplined, but not others, because the employer is not able to accurately determine who has violated a government order due to varying levels of information shared by employees through social media or run-of-the-mill gossip.

With those caveats, employers concerned about the spread of COVID-19 due to employees attending social gatherings, holiday parties or travel should consider implementing policies addressing employee conduct and travel to ensure that expectations are clearly communicated to employees. Some policies to consider:

• Implementing return-to-work testing for employees who travel to areas designated as COVID-19 “hot spots” by applicable government authorities;
• Implementing return-to-work testing for employees attending social events or gatherings in excess of crowd-size limitations implemented by government authorities; and
• Depending on the ability to work remotely, requiring employees to work remotely or take some form of leave for a quarantine period after attending a prohibited social event or traveling out-of-state.

If you have any questions about implementing a COVID-19 travel policy, a policy related to attending prohibited social gatherings, or would like assistance preparing and distributing a policy, please contact our Employment & Labor Law practice group.

Want more resources about the pandemic? Check out our COVID-19 Resource page.