What You Need to Know About Disciplining Employees for Not Social Distancing

Social distancing and mask wearing are viewed as some of the best ways to protect yourself and others from COVID-19.

That’s why many employers insist their employees take these precautions on the job site.

But what about after hours? What steps can an employer take if there’s evidence an employee is not taking precautions and is engaged in risky behavior when away from the workplace?

What You Lawfully Can Do

You can legally educate your employees about the risks when not following guidelines from the U.S. Centers for Disease Control and Prevention (CDC).

In states with an executive order or health order requiring mask wearing or prohibiting large gatherings, employers can require employees to sign a certificate stating that they will follow guidelines when away from the office. If evidence reveals that the employee wasn’t following the guidelines, the employer could discipline the employee.

Employers who learn that employees have not been following safe practices may send employees home – particularly if social distancing is required by state or local order. They also may ask employees to fill out a daily health survey.

What You Can’t Do

Employers who are considering disciplining their employees need to be aware of “lawful off-duty” statutes or anti-discrimination laws. For instance, California, Colorado, Illinois, Nevada, New York, North Dakota and South Carolina have laws protecting employees’ lawful off-duty conduct. Disciplining an employee for not wearing a mask while off duty or for attending a large event could violate these laws.

Many state constitutions guarantee citizens the right to privacy within reasonable limits. For instance, Alaska courts have allowed lawsuits based on the claim that individual’s privacy was invaded when an entity unreasonably intruded into their private affairs. This means that an employer needs to have justifiable and compelling reasons for asking intrusive questions about employees’ off-duty behaviors.