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Coronavirus (COVID-19): Employer Rights and Obligations During the Holiday Season

Author: XpertHR Editorial Team

The risks and liabilities associated with the COVID-19 pandemic have led a number of employers to consider how to approach the 2020 holiday season. In many cases, updating policies or work rules, or requiring additional information before allowing an employee to return to work, may be advisable.

However, compliance requirements, governmental advisories and employee relations concerns should be taken into consideration before an employer takes a strong stance against an employee traveling, attending gatherings or hosting personal events.

An employer should consider its business goals, risk tolerance and existing policies and procedures when navigating the 2020 holidays.

Organizational Policies, Procedures and Work Rules

An employer may enforce work rules and discipline policies that are in compliance with applicable law and that advance business goals. For example, some states prohibit an employer from disciplining an employee for lawful behaviors outside of work of off-duty activities. Therefore, depending on the jurisdiction in which an employer operates, an employer's restricting employee off-duty travel or personal activities may run afoul of these legal protections.

In addition, many leave laws contain retaliation or interference protections. Refusing an employee paid or unpaid leave to which the employee is entitled or disciplining an employee for taking leave (or in any way interfering with protected rights) could be unlawful under federal, state or local laws.

However, an employer could harmonize its own paid leave policies with applicable paid leave requirements (e.g., by enacting a paid time off (PTO) policy that does not differentiate between paid sick leave, emergency paid sick leave or vacation time off). In addition, an employer must enforce safety policies if an employee is exposing co-workers to a hazard. An employer should also enforce applicable quarantine requirements by jurisdiction. Temporary changes to policies in response to emergent workplace conditions, such as increased risk of exposure due to a pandemic state of emergency, may be appropriate.

Policies, procedures and work rules should be enforced consistently across the organization to avoid any apparent or actual unfairness, bias or retaliation.