Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: The holidays are upon us, and we’re wondering what steps we can take to help limit the spread of COVID-19 in our office. As is the case for many other employers this year, the effects of the pandemic have been devastating on our company. We have resumed limited operations at our brick-and-mortar location, and have numerous employees working remotely. Virus numbers are already at an all-time high. We’d like to prevent our employees from traveling this season, particularly to COVID hotspots. Can we do that? In addition, what do we do about our annual office party? Employees will likely expect some sort of celebration, especially given the difficulties we’ve faced in 2020. Is that an option this year?
—Buzzkill in Boulder
This is indeed a year unlike any other. With the pandemic in full force, it’s hard to muster the enthusiasm and frivolity that usually prevails around the holiday season. While it’s good you’re thinking ahead about ways to stem the virus’ transmission, your company needs to be mindful of how to go about doing so. We’ll address your travel and party questions in turn.
Although many people are wisely staying put this year per the CDC’s recommendation, some employees will travel to visit family and friends over the next month. The concern, of course, is that these employees will travel to COVID hotspots, and unwittingly bring the virus back with them to the office upon their return. Imposing a ban on employee travel, however, could run afoul of some state laws. Many states, including your home state of Colorado, have laws prohibiting employers from discriminating against or taking other adverse actions against employees for engaging in lawful, off-duty conduct. Under Colorado law, it is considered an unfair employment practice for an employer to fire an employee for engaging in a lawful activity off the employer’s premises during nonworking hours. In other states such as New York and North Dakota, an employer cannot take adverse action against an employee for, among other things, engaging in legal recreational activities outside work hours. Personal travel could fall under this category. While it might be unwise to travel to a state with a rising infection rate to gather with groups of individuals outside one’s household, it is not necessarily illegal. Employers operating in states without such restrictions could face morale issues for preventing employees from visiting their friends and families.
So what can you do? First, it is fine to ask employees about their travel plans, so long as you’re asking this question of all employees, and the purpose is a legitimate business concern, such as maintaining the safety and health of fellow employees. You are also free to provide employees with information about travel advisories—both national and international—and state orders governing in-person gathering restrictions. For example, your neighboring state, Utah, recently issued a public order imposing temporary restrictions on social gatherings. In addition, the CDC has posted information on COVID-19 risks and the holidays, which can be a gentle reminder about responsible behavior. Keep in mind that there may also be city and/or county restrictions in place related to group gatherings and travel. For example, those traveling to Santa Clara County, California from more than 150 miles outside the county must quarantine for 14 days even if they provides negative test results for the virus.
If their travel plans raise red flags, you can ask employees to self-quarantine upon their return. In fact, some states and local governments require (or strongly recommend) a period of self-isolation upon return from a location with a high COVID-19 infection rate. If employees are able to work from home during this period, they should do so. Note that under certain state laws and the federal Families First Coronavirus Response Act (FFCRA), depending on the specific circumstances, this period of self-isolation or quarantine period could be considered protected, paid time off.
Finally, note that many states and localities recommend or require employers to screen their employees upon returning to work. A health screening process could serve as another line of defense in controlling workplace outbreaks.
You do not indicate, Buzzkill, whether your company intends to move forward with a typical in-person office gathering. If you do so, consider the venue and number of people involved. You did not say how big your office is, but note that many states and local governments have imposed restrictions on such gatherings. Governors, state legislatures, and localities have been issuing a steady stream of guidance since the pandemic began. These directives and guidance are constantly evolving, so make sure you check the most up-to-date information in your state, county, and city and for your desired venue.
Notably, the CDC has issued considerations for events and gatherings in COVID times. As expected, the lowest-risk types of gatherings/events are virtual, followed by small outdoor gatherings in which individuals from different households remain six feet apart. Larger in-person outdoor gatherings, followed by indoor gatherings, pose a greater risk of virus transmission. Therefore, consider going the virtual party route if in-person gatherings that meet your state’s social distancing requirements are not feasible this year.
If size and space limitations are in your favor, there are other considerations as you plan your office party. Limiting alcohol intake at any work function is a good idea for a number of reasons, including to help prevent inappropriate or reckless behavior brought on by lowered inhibitions. This year, we can add “congregating too closely with coworkers without masks” to the list of behavior to avoid at the office party. Providing single-serving food and drink items also can help keep the festivities sanitary.
Regardless of whether the party is in-person or virtual, be mindful that state and federal wage and hour laws can apply to office parties, even if employees are working from home. Non-exempt employees working over 40 hours per week generally are entitled to overtime compensation, and in your home state of Colorado, daily overtime applies to non-exempt employees working over 12 hours per workday or 12 consecutive hours. If the event results in an employee exceeding any of these thresholds, overtime requirements could be triggered. Moreover, if the party is held after normal working hours, attendance cannot be required unless you intend to pay your employees to participate in the gathering, virtual or otherwise. Employers should also be sensitive and avoid penalizing employees who decline to attend. They might decline to participate for religious or medical reasons, or simply because they have maxed out on virtual interactions.
Finally, remember that the event should be geared toward the season or end of the year, and not revolve around religious themes. Better yet, consider waiting until early 2021 and/or when the COVID numbers in your area decline, and rebranding the party as a New Year’s celebration. We’re sure your entire office will be more than happy to say goodbye to 2020!