The Intersection of the COVID-19 Pandemic and BLM Presents New Issues for Employers
Employers have been struggling with compliance with rapidly changing federal, state, and local workplace requirements related to the COVID-19 pandemic since March. Now, employers are facing an intersecting issue—how to manage employees who attend mass protests related to the Black Lives Matter movement (without typically applicable social distancing or safety protocols in place) and/or wear BLM or “I can’t breathe” face masks in the workplace. These are thorny issues for employers to navigate in an already-challenging time. Employers must balance their legal obligation to provide a safe workplace and comply with various state and local health orders against potentially protected employee activity.
On the health and safety side, employers are already getting hit with myriad OSHA complaints, accusing them of not providing a safe workplace by not having proper COVID-19 safety protocols in place. In California, the PAGA letters and lawsuits are starting to roll in on these same grounds. To try to provide a safe workplace in compliance with the litany of federal, state and local orders/guidance, employers have implemented requirements for employees to wear face masks and social distance in the workplace (indeed, California has an Executive Order requiring the use of face masks in certain circumstances in the workplace). Many employers have gone further and have implemented temperature screening and health questionnaires aimed at disallowing potentially infected individuals from entering the workplace. Whether or not face masks are required in a particular setting, all employees should be permitted to wear face masks for safety if they so choose.
Now for the intersection between the COVID-19 workplace safety protocols and recent events sparked by the death of George Floyd that was, and continues to be, followed by mass BLM protests. As many have seen on television or in person, the protests involve mass gatherings of people generally without any social distancing in place and with many not wearing face masks. This of course does not comply with the widespread federal, state, and local health and safety orders and/or guidance related to COVID-19. What is an employer to do if it learns that an employee was present at one of these mass protests and, as a result, may have been exposed to COVID-19? This is a thorny issue because, on the one hand, employers have a right (and are, in fact, required) to adopt and enforce workplace safety rules to prevent the spread of COVID-19 in the workplace. That could include barring employees who are not complying with federal, state, and local health and safety orders and guidance. On the other hand, employees have a protected right under California law to engage in lawful, off-duty conduct (including political activism/speech) and cannot be retaliated against for doing so. How do employers reconcile these arguably competing interests? Employers can apply and enforce safety rules and bar employees from entering the workplace if they do not comply with those protocols, BUT such rules need to be applied and enforced equally. In other words, employers cannot choose to bar only those employees who have attended mass protests and/or include a question on a screening questionnaire aimed only at determining whether employees have attended such gatherings, but not ask about attendance at other types of large gatherings or bar entry to employees who have attended other types of large gatherings. By contrast, an employer arguably could ask a more generalized question about whether employees have attended in the last 14 days indoor gatherings of more than 100 individuals or 25% of the capacity of the space or outdoor mass gatherings without social distancing (this is based on the current California state-wide order) and exclude everyone who says yes, regardless of the reason. That said, employers also have to balance morale issues and risk management considerations in making this decision. Social media backlash is alive, well, and prevalent and a serious concern for many employers. Additionally, an employee who is prevented from working due to having attended a mass protest may be more likely to sue, which means media attention, public scrutiny, and cost. On the flip side, employers who relax health and safety protocols to make exceptions for employees attending protests and potentially increase the COVID-19 risks to their workforces also face exposure to OSHA claims, workers’ compensation claims, and lawsuits for failure to provide a safe workplace. It’s a bit of a no win situation for employers.
Turning to the issue of face masks, as I said above, employees are widely required or permitted to wear face masks as a form of protection against COVID-19 in the workplace. However, some employees have chosen to use face masks as a form of self-expression, and many have begun wearing “Black Lives Matter” or “I can’t breathe” face masks in the workplace. Can employers prohibit this? Should they? The answer may not be the same for every employer. Legally speaking, private employers can adopt and enforce dress code policies that generally prohibit various forms of expression in the workplace. Why? Because certain forms of expression have a tendency to cause dissension among employees. What an employer cannot do is allow certain forms of political or social expression, but not others. That invites a claim that the dress code is discriminatory. What about First Amendment free speech rights? Those don’t apply to private employers. What about California laws protecting lawful off-duty conduct and political activity/views? California DOES have laws protecting lawful off-duty conduct and laws preventing employers from forbidding or directing the political activities/affiliations of employees. See, e.g., Labor Code sections 96(k), 1101-1102. However, a policy neutrally limiting workplace conduct and expression that has legitimate purposes (avoiding loss of productivity and a polarized workplace) may be permissible so long as employees are not restricted in the ability to engage in political activities and affiliations of their choosing outside the workplace. Employers who allow certain forms of political expression and discussion in the workplace cannot pick and choose and ban others, however.
Employers also need to be mindful of the National Labor Relations Act, which protects the right of employees to engage in concerted activity for mutual aid and protection. This generally is aimed at ensuring employees have the right to discuss, and band together to try to change, the terms and conditions of their employment. Wearing political or social justice-inspired clothing is not necessarily speech concerning the terms and conditions of employment, but rather is speech more broadly concerning society and/or government. Employees cannot be prohibited from discussing concerns of workplace discrimination or similar issues affecting the workplace as a result. This right is also protected by federal Title VII law and California FEHA law. Again, these rights are not necessarily implicated or infringed upon by a uniform dress code policy aimed at precluding all forms of dress that include logos or expression that can cause dissension in the workplace.
All of that said, several employers who have or had this type of legitimate dress code policy and who prohibited employees from wearing BLM masks and garb in the workplace have faced serious social media backlash. That backlash has actually caused some of these employers to change their policies and allow BLM masks and clothing. Employers may make such a choice for morale reasons and/or a fear of loss of business, rather than out of concerns of potential non-compliance with various labor and employment laws. Those allowing such expression in the workplace may face a slippery slope going forward. It will be difficult to allow workplace expression on one social/political issue but then ban other arguably similar expression on other social and political issues that tend to divide society (e.g. the upcoming November election) and are likely to have a similar effect on the workplace. The answers to these issues will not be the same for every employer. The decisions are not made in vacuums, but are impacted by the nature of the employer’s business and the roles of its employees (e.g. if the employee works in a public-facing capacity representing the employer’s business), as well as non-legal pressures and/or morale issues unique to their workforces. Walk softly employers. Challenging times.