This is typically the time when businesses begin to plan for their holiday celebration for employees. Before COVID, most such celebrations took the form of an office get-together, whether at the business, a restaurant/bar, or somewhere similar. Things will have to be different this year. While a holiday celebration may certainly help with employee morale in this stressful time, it may also actually cause unintended stress and could certainly open the employer to exposures (legal and health related), bad PR, and the like. To recognize all of that, the CDC recently issued a holiday guidance, available on their website.
As an initial matter, the CDC recommends that employers review its’ prior COVID guidance entitled Considerations for Events and Gatherings. This guidance sets forth various factors to consider in assessing risk, including community levels of COVID-19 spread, with consideration given to the number and rate of COVID cases in the area; the location of the gathering (i.e. indoors v. outdoors); its expected duration; the number of people expected (here, the CDC reminds us to consult applicable state and local health department law, rules and regulations); the locations attendees are traveling from; and behaviors of attendees both before and during the gathering.
The CDC generally recommends that events be outdoors if possible, that employers ask employees to bring additional supplies such as masks, hand sanitizer, etc., that employers ensure that any indoor space not be crowded, poorly ventilated, or fully enclosed, and even that employers consider asking attendees to “strictly avoid contact with people outside of [their] household for 14 days before the gathering”.
The CDC also commented on the types of activities that may occur during the gathering. It noted that activities such as “singing, chanting, or shouting” be avoided as they have been identified as creating an increased risk of transmission and it reiterated that holiday outfits should not be worn at the expense of proper face coverings. Also, if food and drink are served at the event, “employers should take into account the risk of contact transmission and consider avoiding pot-luck style meals or self-service food stations.”
One interesting twist to the CDC’s recommendation is a limitation on permitting an employee who has been “deemed ineligible to enter the workplace, such as those in quarantine due to potential exposures or higher risk activities during travel,” be “excluded from in-person attendance at company-sponsored holiday gatherings.” In addition, it recommends that people identified as those at increased risk of developing severe illness from COVID, such as older individuals and people who have certain underlying health condition, including pregnancy, be excluded from the gathering. From a legal perspective, though, such exclusions from company-sponsored activities could result in a claim of discrimination.
In addition to the potential for discrimination claims from such events, employers must be very careful not to violate CDC recommendations/mandates, or those from state and local governmental entities. Employers may also want to consider the potential negative publicity that such a gathering could create, as has been in the news lately, especially if not all employees are strictly complying with the distancing/masking rules.