First and foremost, employers should not create and apply off-duty conduct policy ad hoc. Proactive communication and consistent application are the two best ways to encourage compliance and mitigate the risk of future litigation. Hurried development of policies or inconsistent application may lead to claims of favoritism or discrimination, which no employer wants to face during these difficult times.  It is also important for employers to be thoughtful and flexible in how they respond to complaints about off-duty behavior, such as an employee not wearing a mask or social distancing. In most cases, starting with a conversation about the policy and how it protects everyone can be a better strategy than jumping to disciplinary action.

Employers should also be mindful that in many states, they are prohibited from taking disciplinary action against employees based on certain lawful off-duty conduct. For example, South Carolina prohibits employers from firing a worker “because of political opinions or the exercise of political rights and privileges” guaranteed by the state or federal Constitution. While it is unclear whether such laws would protect conduct that violates public health guidance, employers must weigh the risk to workplace safety against the potential for litigation. Given the extraordinary circumstances created by the pandemic, the interests of public health will likely outweigh the risks of litigation for many employers.

As for the holidays themselves, the unfortunate reality is that large indoor gatherings can pose significant risks to workplace safety. To address this risk while recognizing the importance of family gatherings, employers should encourage employees to follow public health guidance as much as possible.  For example, the CDC recommends that individuals celebrating Thanksgiving with people outside their household wear masks, stay at least 6 feet away from others, host gatherings outdoors if possible, and use single-use options for serving food.

Additionally, employers should strongly consider implementing flexible teleworking and leave policies around the holidays to reduce the number of employees on-site and prevent transmission of the coronavirus as much as possible. Those employers who cannot accommodate telework or increased absences, or employers who want to take a strict approach with employee safety, could consider requiring workers to either use PTO or go without pay if they must be absent after contracting or being exposed to COVID-19. This would create a greater incentive for employees to follow public health guidance and keep everyone’s safety in mind. That said, such a policy could also encourage sick employees to show up to work. If employers go this route, they should also have a clear and consistent screening policy to identify potentially sick employees in the workplace.