When it comes to off-duty conduct, it can be difficult to determine the best course of action for mitigating risk. That said, an employee’s personal time and off-duty activities can directly affect the health of your workforce, as well as your company’s reputation and ability to operate—so it’s important to know where your business stands.
Here are some of the top concerns and strategies for navigating off-duty conduct in 2020.
Off-Duty Conduct: What’s the Problem?
Off-duty conduct typically includes elements like recreational activities, social media use, actions taken on behalf of political stances or affiliations, drug and alcohol consumption, or personal relationships. Since the start of COVID-19, these off-duty activities have taken on a whole new level of risk for businesses to worry about. Some examples of off-duty issues include:
- Employee traveling outside the state being subject to 14-day quarantine upon their return;
- Employees participating in community events and protests;
- Employees attending large indoor gatherings i.e. weddings, funerals, or other ceremonies; or
- Employees not following proper mask protocol.
Due to issues like these, you are forced to ask some high-risk questions: Were the employee’s actions legal? If their actions were technically legal (whether in your state or the location where the activity occurred), do they pose an OSHA risk as an identifiable hazard to your other employees? What level of monitoring is considered due diligence in terms of protecting your operation?
When all is said and done, your practical concern is this: if you do let an employee back to work after they’ve taken personal risks during COVID-19, are you risking an operational shutdown and infection of more employees?
Practical Considerations Regarding Off-Duty Conduct
As the circumstances for your business will be unique to others’, it’s critical to plan exactly how you want to respond to this issue. Here are some factors to keep in mind:
- Managing off-duty conduct depends on your location. Each state has its own laws concerning masks, travel bans, and mass gatherings/social distancing. So addressing whether or not your employee followed such laws off-the-clock must be done with extreme care towards state and local ordinances. (Ex. For employees returning to Chicago from specific states, employers are legally expected to have them quarantine for 14 days.)
- There is a difference between unlawful actions and risk. Being able to recognize when an employee has actually broken a law—as opposed to taking actions which could create negative consequences for your business but that break no official regulations or policies—is helpful for avoiding costly lawsuits. Make sure you weigh the significance of both in your decision-making and ask yourself: Is there a relationship between the off-duty conduct and the employee's job? Does the employee's conduct have a potential for harming your business?
- When managing off-duty hazards, employees must be treated equally. Monitoring and enforcing policies related to off-duty activity can be difficult because you need to ensure all your employees are met with the same, consistent investigations and consequences. (Ex. An employee who was reportedly at a 100-person wedding needs to be treated the same as the employee who participated in a 100-person protest.)
- If you decide to implement a policy that regulates off-duty conduct or employer monitoring, be transparent about the reasons why these changes are necessary. Take time to listen to employees’ concerns and create a dialogue for clarity around these new circumstances. It may be beneficial to create separate, narrow policies addressing actions related to COVID-19 safety, known hazards, and privacy concessions. And if you do so, be sure to review with your legal team to understand any potential unintended consequences.
Regulations Affecting Off-Duty Conduct in 2020
In order to mitigate the risks associated with employees’ outside actions properly, you need to familiarize yourself with the regulations that dictate these risk levels—as well as the compliance laws that restrict your right to retaliate.
In order to protect your business and workforce, here are a few to consider:
- Social distancing parameters and mask regulations: In addition to the regulations provided by the US Centers for Disease Control and Prevention (CDC), you need to make sure you are up-to-speed on all relevant state-specific mandates. This will make meeting your OSHA safety obligations and overruling potential litigation claims easier. Note: More than 34 states have mask mandates and other restrictions, so make sure you’re checking for regular updates.
- Privacy laws: Asking invasive questions about off-duty activities, launching social media-based investigations, or keeping monitoring records can quickly cross over into privacy violation territory—especially if you’re keeping records of employees’ associations, personal actions, political views, and communications in any way. Therefore, you need to clarify your policies and get explicit permission from employees to take new, specific monitoring precautions. As well as pass any new policies by your legal team to ensure legal compliance.
- Anti-retaliation ordinances: It goes without saying, but these laws actually protect employers from issues stemming from the need to quarantine employees who may have come in contact with COVID-19 during their personal activities or whose actions pose a direct threat to your business.
- Protected leave and pay laws: You don’t necessarily need to pay employees for self-isolation time brought on by their actions, so long as you aren’t discriminating in any way. However, you are expected to allow them to use PTO and uphold all relevant protected leave—especially as it relates to the Family and Medical Leave Act (FMLA) and Coronavirus Families First Coronavirus Response Act.
- Protected content: Regardless of your business’s policies, there’s a good chance there are still protections in place limiting your abilities to retaliate, censor, question, and investigate claims by employees. Make sure you are legally complying with these protections as concerns arise.
HR Consulting Services
Employers and employees alike benefit from having a clear off-duty conduct policy and actionable response plans for hazards like COVID-19. That’s why EPAY Systems provides HR and compliance guidance in addition to our workforce management solutions.
When you choose to work with EPAY, you’re choosing to work with a team of HR and technology experts whose goal is to successfully guide your business through ongoing compliance changes and hourly workforce obstacles with ease. We provide competitive software solutions, access to premium HR-consulting services, and regular updates on hourly workforce compliance (check out our COVID-19 resource page). Download our Free Employee Handbook and request a demo today!