Gary McLaughlin Quoted in SHRM on Legality of Employee Monitoring During Pandemic

SHRM has quoted Akin Gump labor and employment partner Gary McLaughlin in the article “Should You Monitor Workers Who Aren’t Social Distancing Off Duty?” As many businesses prepare to re-open, the article says such monitoring could be permitted if the policy is applied consistently.

McLaughlin, though, warned about acting based solely on speculation, pointing out that an employee who visited a popular beach or park might have been able to maintain proper social distancing. “Because there may be an element of subjectivity to what constitutes good social distancing practices, employers must be careful to avoid uneven enforcement that could be perceived as unfair or discriminatory,” he said.

“At the same time,” McLaughlin noted, “employers also have an obligation to protect co-workers from a reckless colleague who jeopardizes the safety of the workplace.” If an employee has participated in a large gathering without social distancing, he said, the employer could be justified in asking the employee to follow CDC guidelines and stay at home for 14 days—or less in certain circumstances. He said the employer also might require the worker to test for coronavirus before returning.

As for requiring employees to wear masks, McLaughlin said they are for the protection of others, not the individual wearing them. “Therefore, failure to wear a mask or face covering away from work likely would not increase the risk of infecting co-workers.”