Thursday, June 4, 2020

Coronavirus Update 6–4–2020: Can you force employees who participate in George Floyd protests to quarantine without pay?

Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd's murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?

The TL;DR answer is "yes." 

The longer answer has a couple of key exceptions and other nuances.

1/ Public employees enjoy some First Amendment protections work. In the private sector, Connecticut prohibits employers from disciplining or firing employees for exercising their First Amendment rights. California, New York, and the District of Columbia ban political affiliation and activity discrimination. New Mexico and South Carolina ban discrimination based on political opinions. And Colorado and North Dakota more broadly limit an employer from restricting any lawful off-duty activities by employees. In any of these cases, I'd have concerns about taking an adverse action against an employee for participating in a peaceful political gathering. (For rioters and looters, all bets are off no matter what.)

2/ Title VII might offer additional protections for protesters, but only if an employer treats employees of one race (say, for example, its African-American employees) more harshly than employees of another race. If an employer treats all employees the same by requiring anyone protesting to take a mandatory two-week unpaid leave of absence, then Title VII won't offer much help.

3/ The National Labor Relations Act's protections for employees who engage in "protected concerted activity" likely have zero application, for the reasons I discuss here.

This issue, however, is a lot more nuanced than, "The law says I can send employees home without pay while they quarantine, so I will do so for anyone engaging in behavior outside of work that placed them at risk for COVID-19." There is no easy answer to this question. I believe that you are taking a risk of injecting COVID-19 into your workplace if you allow these employees to return to work on the heels of protesting (no differently than returning a weekend mass-gathering partier). The question is whether you pay them for their time off. You have two options, which depend on where you come down on the safety vs. racism spectrum:

1/ Treat George Floyd protesters no differently than any other person who gathers in a large group outside of work by sending them home for two weeks without pay. The safety issues are identical. Mass protesters could turn into super-spreaders of the virus, including in your workplace. We are still in the midst of a pandemic, and no matter how large of a problem system racism is, and no matter how awful George Floyd's murder was, we cannot lose sight of the big coronavirus picture, lest we have another spike in cases and lose even more lives. 

2/ Pay George Floyd protesters for their mandatory leaves of absence. These employees were not getting their weekend jollies on, but were exercising their political dissent over a vitally important issue. You can take a stand as an employer against the racism over which they were protesting by paying them for their mandatory LOA quarantine. It also prevents your company from being painted as pro-racism by a viral online mob based on a perception (accurate or not) that you are punishing these employees for protesting this important issue.

Me? I'm longing for a day when we don't need to even have this discussion because both the pandemic and racism are history.

* Image by Bruce Emmerling from Pixabay