Most employers have implemented new policies to comply with OSHA’s requirement to provide a safe workplace and to limit the spread of COVID-19.  These new policies typically include enhanced cleaning procedures, facemask and social distancing requirements, and limitations on business travel and in-person meetings.  Many employers wonder whether they can legally take these policies a step further and place restrictions on their employees’ behavior outside the workplace, particularly if they believe the employee is engaging in risky travel or other behavior that may increase their likelihood of contracting the virus.  Unfortunately, as with most questions surrounding this pandemic, the answer is that it depends.

Certain states (California, Colorado, New York, and North Dakota) have laws that prohibit employers from placing any restrictions on employees engaged in lawful activities outside the workplace.  Other states have more narrow laws, such as statutes that protect the off-duty use of tobacco and alcohol or employees’ rights to free speech.  Employers must also consider other federal and state laws that would impact their ability to control their employees’ activities while they are off the clock.  For instance, employers cannot place restrictions that discriminate against certain protected groups under Title VII, that violate the Family and Medical Leave Act, or that limit concerted activity under the National Labor Relations Act.

Employers generally can place restrictions on their employees’ personal travel or other activities engaged in during their leisure time, if the employer has a reasonable belief that the employee presents an increased risk to the workplace and provided that the policy is enforced uniformly across the workforce.  However, even though it is legal, it probably is not recommended.

Most businesses would have trouble monitoring this and enforcing it equally – for instance, people who do not post their whereabouts on social media are less likely to be singled out than those who do.  Further, there could be substantial business interruptions if an employer mandates a quarantine whenever an employee engages in any type of “risky” behavior on his or her own time.  Employers should also consider whether this is necessary given the needs of the business.  Imposing strict requirements that limit employees’ personal lives could result in low morale and bad publicity, and it is probably not necessary if the majority of the workforce can work from home anyway.

A better approach would be to have a return to work policy in place that is strictly and uniformly enforced, which would require any employee showing symptoms to self-quarantine and would require all employees to wear masks and practice social distancing while in the workplace.  Depending on the business, employers may also want to implement a policy that requires employees to notify the employer about any upcoming personal travel, advise them about the risks of such travel, and implement policies for how the employee will be integrated back into the workforce after taking the trip.

Most of these questions are fact-specific and depend on which state law applies, the job duties of the employees, and the needs of the business.  If you have any specific questions about your workforce, please contact a member of Wyatt’s labor and employment team.