As the holiday season approaches and the pandemic rages on, workers’ plans to travel and gather with family to celebrate could be their companies’ business, too.
Employers generally have the legal latitude to ask workers about their holiday plans, mandate quarantining if there’s a chance they were exposed to the coronavirus, and even forbid them to travel or attend certain events, attorneys said.
“Terminating an employee because they traveled during Thanksgiving during the pandemic seems quite draconian,” said Michael Elkins, founder of the management-side firm MLE Law. “Could they take these draconian measures? Yes they could.”
The Thanksgiving holiday is arriving as the U.S. is hitting record highs for daily Covid-19 infections. The Centers for Disease Control and Prevention recommended this week that people celebrate Thanksgiving at home with their housemates.
And with cold weather forcing more people indoors, public health experts warn that infection rates around Christmas could be even worse.
Companies’ duty to maintain a safe workplace combined with an unprecedented public health crisis highlight the leeway nonunion, private-sector employers have to exert control over their workers’ personal lives. Federal guidance as well as state and local virus-related restrictions on travel and gatherings sizes make it even easier for employers to impose rules around holidays, attorneys said.
Broad Employer Authority
Employment relationships are presumed to be “at-will” in all states except Montana, according to the National Conference of State Legislatures. Employers can fire at-will workers for any legal reason, but they’ll have fewer practical problems if they properly communicate and consistently apply their holiday rules, lawyers said.
“I think the messages for most employers this week is, ‘Be safe, and here’s what be safe means,’” said Robert Duston, an attorney with the management-side firm Saul Ewing Arnstein & Lehr.
Positive messaging that reinforces public health guidance is an ideal strategy to remind workers that employers can—and likely will—check in on holiday whereabouts upon returning to the office, he said.
And though the questions may come across as nosy or invasive, workers likely have to respond, according to Michael Hancock, a former U.S. Labor Department official.
“I don’t know of any sort of legal protections that they could raise in those circumstances,” Hancock, now a lawyer with the worker-side firm Cohen Milstein, said. “Employers have a broad range of things that they can do that might otherwise seem unfair.”
Lawful Off-Duty Conduct
One complicating factor to employer rules about the holidays are state laws that protect workers from being disciplined for lawful activity outside of work. A few states have such measures, including California and Colorado.
But the potential employer risks of imposing holiday rules in those states haven’t played out in litigation yet, said Steven Bernstein, an attorney with the management-side firm Fisher Phillips. Employers in most states are in the clear to impose those rules, such as mandatory quarantining if a worker travels to certain states or attends large gatherings, he said.
Workers assigned to quarantine after the holidays could be eligible for up to two weeks of paid leave under the Families First Coronavirus Response Act, said Steven Suflas, an attorney who counsels employers for Ballard Spahr. Some of the reasons that trigger such leave are government orders directing isolation or advice from a health care provider, he said.
FFCRA leave, which was part of Congress’ initial package of virus relief programs, is set to expire Dec. 31.