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Should I Discipline an Employee Who Violates Social Distancing Outside the Workplace?

By now, employers and employees are getting the hang of social distancing at work. The CDC has issued a ton of guidance for workplace protocol as has OSHA.  Employers need to consider how best to decrease the spread of COVID-19 and lower the impact in the workplace. With that in mind, should employers discipline an employee who violates social distancing outside of the workplace?

Unfortunately, employers cannot discipline employees who violate social distancing outside of the workplace without opening themselves up to significant liability. However, employers must do their best to protect other workers and their business operations. Below are some tips employers can and should do to protect their workers and their business.

Tips Employers Can Do To Protect Workers and Operations

  1. Require Face Masks/Coverings for All Employees
  2. Separate Employees, Close Off Common Spaces
  3. Send People Home and/or Allow Employees to Work from Home
  4. Conduct Temperature Tests Upon Arrival
  5. Stagger Schedules
  6. Provide Ample PPE and Disinfectants
  7. Require an Office Wipe Down Before Leaving
  8. Talk Openly and Set an Expectation to Stay Safe, Practice Safe Social Distancing and Consider the Health and Safety of Others

What Can Happen If Employers Attempt to Discipline Employees for Off-Duty Behavior?

You may have the urge to punish employees for their off-duty actions and who can blame you? They are putting your workplace at risk, your employees and their families. We get it but fight the urge. Otherwise you could be liable for discrimination and open yourself up to bad publicity, 

Here’s why:

If an employee is disciplined for not social distancing while at a religious or cultural service, the employer’s decision to discipline could be viewed as discrimination.

Nevada Revised Statute 613.333 prohibits employer discrimination for lawful use of any product, such as alcohol, “outside of the employer’s premises which does not adversely affect job performance or safety of other employees.” If the employee violates social distancing while at a restaurant, bar, or other location that serves alcoholic drinks, they may argue that the employer is violating NRS 613.333.

Additionally, if the employee believes they were unfairly disciplined for their off-duty behavior, they may inform other individuals and bring negative publicity to your business.

A final consideration is: how did the employer learn that the employee was violating social distancing? Another employee would need to physically be in the same location as the employee. For example, if an employee in their car sees another employee walk into a restaurant, there is no way to know if the employee was violating social distancing inside. If disciplining employees for violating social distancing, employers need to be consistent in discipling all employees to prevent allegations of discrimination.

The best practice in this situation would be for employers to not discipline employees for legal off-duty behavior such as not social distancing. Instead, employers should continue to check employees’ temperatures before entering the workplace and for their employees to self-monitor and report COVID-19 symptoms to management.

HRinDemand is offering free HR consultation to help businesses cope with the challenges that we are all facing. Please take advantage of the up-to-date information available on the HRinDemand blog, the FAQs section, and our valuable resources page. If you are unable to find the answers you need or merely need to talk, contact Melissa Marsh at 775-400-1322.

Bailey Cummins, PHR, is a member of the HRinDemand team, a human resources company in Reno, NV, offering expert guidance and easy-to-use tools to help small businesses with employment regulations, compliance, employee relations, and company growth.  

Sources:

Nevada Legislature. Chapter 613- Employment Practices. https://www.leg.state.nv.us/NRS/NRS-613.html

Society for Human Resource Management. (2020, May 19). Should 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

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