The COVID-19 Conundrum: Can you suspend employees for attending big Thanksgiving dinners?

That would make things interesting, wouldn’t it?

New Jersey and Philadelphia, among others, tighten the belt.

We’ve seen a spate of new state and local COVID-19 restrictions over the past week or so.

Why, just yesterday, New Jersey Governor Phil Murphy announced that he was signing an Executive Order limiting most indoor gatherings to a maximum of 10 people, starting today. Meanwhile, in Philadelphia, Mayor Jim Kenney announced that all indoor gatherings and events involving people from more than one household are prohibited in public or private spaces. The only exception is for religious institutions, which can have indoor events, but with no more than 5 people per 1,000 sq. ft. or 5 percent of maximum occupancy. The new “Safer at Home” restrictions are effective November 20, 2020 through January 1, 2021.

Personally, I think that these steps are basically toothless without any enforcement mechanism. But what if your business decided to police the situation?

Bigger Thanksgiving –> Smaller Paycheck?

I have a hypothetical situation.

Let’s assume that Strictly Business, LLC operates in New Jersey, Philadelphia, or another state or city with similar restrictions on indoor gatherings. Strictly Business implements a rule that gives non-remote employees two options:

1. Employees must certify whether they will attend a large Thanksgiving dinner (for example, a two household dinner in Philadelphia). Anyone who certifies “yes” and attends a large Thanksgiving dinner cannot report to the office for at least “X” number of days? (“X” would be however long it takes to contact trace and confirm that the employee did not have close contact at Thanksgiving dinner with anyone with COVID-19 or COVID-19 symptoms.) In the interim, the employee can use PTO. Otherwise, the leave is unpaid.
2. Any employee who certifies “no” but attends a large Thanksgiving dinner anyway is disciplined, up to and including termination of employment. Most likely, the discipline is an unpaid suspension, and the employee still must contact trace and confirm as with No. 1.

Is this legal? I don’t see why not (assuming that the employees are at-will, Strictly Business enforces the rule evenly, and otherwise complies with applicable wage and hour law). If an employer tried this in a state with off-duty conduct laws and less stringent indoor restrictions, that could pose an issue. Plus, FFCRA rules may apply in the event of a super-spreader Thanksgiving.

Is this prudent? That’s the bigger question. On the one hand, Strictly Business is focused on employee safety. On the other hand, the company is messing with Thanksgiving. So, the morale hit could be enormous. Consider too what would happen if the rule-makers are the biggest scofflaws. Plus, how the heck does Strictly Business enforce this without scouring social media or having co-workers narcing on one another?

So, that’s why I turn to you, the best employment law nerds readers in the world, to hear what you think.

• Would you consider implementing a rule like this?
• What safety precautions is your company going to take around the holidays to protect its in-person workforce?

Email me and let me know.