By this point, we’re all probably used to seeing announcements of new or renewed government lockdowns and lectures from mayors and governors about how you should all stay home over the holidays. (Even when they turn around and immediately make plans to travel themselves. Yes, we’re looking at you, Andrew Cuomo.) But what happens when the intrusion into your personal travel agenda isn’t coming from your elected leaders, but instead from your employer? Is that really any of their business? Is it even legal? That’s a question that’s coming up in Texas this month and, at least according to one attorney who works on employment law cases, the employer can probably do this. And if you violate the company’s travel policy they can probably fire you. (CBS Dallas-Ft. Worth)
Just because you’re off the clock over the holidays, doesn’t mean your boss can’t ask where you’re off to. Employees may face questions about their travel plans, and labor law experts say, for the most part, companies have a lot of leeway about what they can ask about and enforce
Making travel to virus hotspots off limits, requiring quarantine upon return and recommending a testing protocol could all be allowable according to Dallas attorney Rogge Dunn.
“If they have a policy and they say nobody’s allowed to travel on a plane, and you violate that policy, they could fire you,” he said.
I’ll admit that at first glance this sounded like a bunch of malarkey to me. What you do when you leave the office and are not on the clock is none of the boss’s business, right? But Dunn makes a couple of points that make me think twice about the question.
He notes that if you wind up getting arrested or generating a lot of headlines that reflect poorly on the company you can generally be dismissed. For a recent example, look no further than the “Central Park Karen” who called 911 on a Black birdwatcher in the park. She was fired from her job in a matter of days and nothing she did was in any way related to her employer or her job responsibilities. If your employer has a policy against the use of tobacco products that you agreed to when you were hired and your boss learns that you’ve been smoking after you leave work, they could similarly dismiss you for that.
But there are some caveats to Dunn’s explanation. Those facts are true in Texas, but it varies from state to state. Some states have privacy laws that restrict the sorts of things your employer can ask you about or protections against wrongful termination under specific circumstances. Also, in order to avoid a possible lawsuit, the employer would need to have a clearly defined policy against holiday travel spelled out for all the workers and it would have to be applied uniformly.
This still doesn’t sit well with me, however. The examples listed above all deal with either damage to the company’s reputation or the regulation of healthcare costs. Do those sorts of damages apply to someone who is traveling to a COVID hotspot? Someone who has their parents over for Christmas dinner from the next town over is theoretically in just as much danger of becoming infected as a person who flies out of state to visit their relatives. So if the employer tries to ban out-of-state air travel but doesn’t demand you stay locked down with only the members of your household, we’re back into the realm of unequal application of the rules.
The more I sort through this question, the less I like it. Nobody is doing anything unseemly by celebrating the holidays with their loved ones. And every office or job site is at risk whenever people show up to work in person because you can’t know what they were doing during the sixteen hours since they last clocked out. Making a special exception to try to forbid travel just over the holidays may be legal in some places, but it’s just wrong. Unfortunately, if you find yourself in that situation, your only option may be to vote with your feet and look for a new job.