Commentary & Opinion

When an employee isn’t social distancing outside of work

By Jon Hyman

May. 26, 2020

How did you spend your Memorial Day weekend? Mine was way more mundane than years past.

I watched my nephew receive his high school diploma and pre-record his valedictory address in an individual, family-only ceremony. We walked the dogs a bunch. We went to Lowe’s, masks on faces (the first store in which I’ve been inside other than a grocery store in over two months). I barbecued for my wife and kids.

Other people chose less COVID-appropriate holiday weekend activities.

This video is on Snapchat in the Lake of the Ozarks? Unreal. What are we doing?

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Scenes like this one were repeated all over the country. Will you be surprised when COVID-19 cells spring up in two weeks linked to these mass gatherings? Because they will.
Here’s my question. What do you do if you see one of your employees in one of these social-gathering viral videos? Do you welcome him or her back into the workplace today with open arms?
I would not. I’d screen employees for risky behaviors during the holiday weekend or otherwise. Ohio already requires all businesses, as a condition to reopening, to “conduct daily health assessments by employers and employees (self-evaluation) to determine if ‘fit for duty.’” With the country reopen and summer upon us, I’d recommend adding two questions to this self-assessment
  • Did you take part in a social gathering in which you were within 6 feet of others? Being within 6 feet of others who do increases your chances of getting infected and infecting others.
  • If you attended a social gathering, was everyone around you wearing a mask or facial covering? Others within six feet of you not wearing masks increases your chances of becoming infected.
I would also place any employee who violated social distancing rules outside of work on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment. (According to NBC News, the Kansas City health director has called for self-quarantine of all Lake of the Ozarks partiers.)
If an employee returns after being at one of these weekend parties and then tests positive, there is a really good chance that you will have to shut down your entire business (or at least a sizable part of it). Is this a risk you want to take? I wouldn’t, which is why I’d ask the questions and place anyone on an unpaid quarantine leave who answers “yes” or who I otherwise discover violated social distancing rules (such as if I see them on a viral video or photo.
We all have a social responsibility to help stop the spread of coronavirus. If an employee fails to play his or her part and chooses to act irresponsibly, I am not going to lose any sleep by sending them home for two weeks to protect the rest of my employees and their families, and my business and its continuing operations.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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