Q: Everyone in the office must wear a mask while they are here, but I am concerned about what they do outside. A lot of the staff are young, and they may be going out in large unmasked groups or otherwise acting stupidly when they are not here. I would like to add a policy that anyone found to be doing this will be terminated. Can I do that?
Reaching outside the office to control an employee’s conduct is quite limited to an employer. The general rule, codified into law in some states, is that if the outside activity is lawful, the employer may not restrict it.
However, even if you are in an area that does not limit crowd sizes or require masking in social settings, so that maskless partying is not an unlawful activity, there is also the issue of whether the conduct actually affects their work, because that may still allow you to address it.
Here, though, your own controls in your office would likely block you. You presumably have protocols in place to detect signs of infection before it enters and to block spread if it enters while subclinical. A foolish partygoer would be prevented from endangering the office just as much as someone accidentally infected while shopping for groceries. You also monitor employee conduct in the office, so even if they lack good judgment once they leave, you can control what they do on your premises and so can prevent risk.
This leaves only one basis for disciplining them: that their poor conduct on their own time will be imputed to your practice and call it into disrepute in the eyes of the public. There are contractual provisions of this type that you can amend in, and you could also add this to the employee handbook. However, this would still be limited to situations in which the person is recognizably part of your staff. Social media postings in which the employee talks about where they work while posing without a mask or someone else flags their presence in a posted photo and comments about where they work would be examples.
The recent case of an oncology nurse posting a video of herself on TikTok mocking what her colleagues would say if they knew how reckless she was outside the hospital demonstrates the wide scope of an employee’s power when there is such a situation. When the hospital started to be inundated with demands to know how it could be exposing vulnerable patients to her, the nurse was immediately placed on administrative leave that kept her away from patients, satisfying the fiduciary duty of the hospital to its patients and correcting the business damage that she was causing.
Of course, someone bent on acting inappropriately could be deceptive about it. Setting the regulation, including in your social media policy, would be prudent but should be coupled on the positive side to a serious talk with all staff members about their responsibility to set a good example for masking when in the community.
Dr. MedLaw, MD, JD, is a board certified radiologist and a malpractice attorney.