COVID-19 and the Holidays
As I am writing this article, it is the eve of what will likely be one of the most unique Thanksgiving holidays that any of us have experienced in our lifetimes, thanks to COVID-19. The Centers for Disease Control (“CDC”) has already issued directives that persons should not travel during the upcoming holiday season, and that they should keep their gatherings small (ideally limited to their own households), and where possible, keep them outside to maintain good social distancing. In light of the CDC’s directive, I have gotten several questions from clients about what employers can do to ensure that their employees follow such directives and engage in safe behavior during the upcoming holidays. The answer to those questions might surprise you.
Believe it or not, even in a place like New Jersey which is very pro-employee, employers can actually demand that their employees refrain from travelling during the holiday season and likewise minimize their contacts and holiday gatherings, even when such conduct is happening outside of working hours. Why? Because of the public health crisis caused by COVID-19, employers have a right (and some would say a legal duty) to safeguard their workplaces, and in light of the CDC directive against holiday travel, employers can mandate no employee travel and likewise require that employee family gatherings also adhere to CDC recommendations. Employers have been given a great deal of latitude during this public health emergency in taking steps to protect the workplace, and requiring employees to adhere to the recent CDC directives fall within the scope of that discretionary authority.
So, in light of the above, are you telling me that as an employer, I could actually discipline or even fire an employee who fails to follow the CDC recommendations? My answer: absolutely. Most employees in New Jersey are at will, meaning that an employee can be fired for any reason, or no reason at all, so long as it is not an illegal reason. There is no legal prohibition in New Jersey that would prevent an employer from firing or disciplining an employee who refuses to adhere to an employer directive that an employee not travel during the holidays and/or minimize their family gatherings in light of the concerns raised by the CDC. Some states like Colorado and California have laws that prevent employers from firing employees for doing lawfully allowable things outside of work hours, but New Jersey has no such law. Thus, if an employer wants to mandate that its employees follow what the CDC has mandated about travel and gatherings during this holiday season, employers in New Jersey are free to impose such requirements, and may issue appropriate discipline if employees fail to follow such requirements.
So, employers here in New Jersey have one more tool to use in protecting the workplace while the COVID-19 pandemic continues to wreak havoc on day to day life.
I wish everyone a safe and happy holiday season.
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