By Braden Campbell

Law360 (June 23, 2020, 9:09 PM EDT) -- As protests continue around the nation, employers are facing new questions such as how to manage coronavirus risks in the workplace after workers take part in mass demonstrations, and if and how to react when employees wear Black Lives Matter masks on the job. Here, Law360 looks at what employers should do when protests intersect with the workplace.

Mass Protests and Virus Risk

Thousands of people have taken part in nationwide protests against police violence and systemic racism following the late May killing of George Floyd by a Minneapolis police officer.

These protests have coincided with the worst infectious disease outbreak in more than a century, raising concerns that participants have been exposed to the novel coronavirus. This poses a question for employers as they continue to resume in-person work: How can they limit virus exposure in the workplace without upsetting workers who take part in protests or trampling on their rights?

These concerns hit "a really interesting intersection" between an employer's right to manage its workforce and obligation to mitigate health risks, and workers' rights to speak their minds about social issues, said Jonathan Hyman, a Meyers Roman Friedberg & Lewis attorney who advises employers on work issues.

"Do you want to support the rights of your employees to go out and protest [about] this vitally important issue?" Hyman said. "But then, how do you protect the health and safety of other employees if you let [protesters] go back into work?"

State and federal law confer limited protections for workers who protest. The First Amendment gives a general right to protest, but it only bars government employers — not private businesses — from taking action against workers who exercise that right. Several states, including California, New York and South Carolina, forbid employers from discriminating against workers who take part in peaceful protests outside work, however.

Otherwise, federal law may protect workers in certain circumstances. If workers advocate for racial justice in the workplace, Title VII of the Civil Rights Act and other race bias laws may protect them from retaliation. And if their protest involves job conditions, they may be protected by the National Labor Relations Act.

Against this backdrop, employers should not treat protesters differently from other workers, Fox Rothschild LLP labor and employment department co-chair Catherine Barbieri told Law360.

By this point, employers should have "return to work plans" that set protocols for monitoring virus symptoms and sending workers home when they show signs of infection or test positive, Barbieri said. They should follow these plans without regard to how the worker got sick, she said.

"When the employee is able to return to work again will be dictated by the terms of the plan, but you really don't want to treat protesting employees any differently than other employees out doing whatever they're doing off-duty," Barbieri said.

And employers should be careful about probing whether workers have been exposed to the virus, Fox Rothschild employment associate Liku Madoshi said. Employers can and should make workers report when they've been around someone who has been diagnosed with COVID-19, she said. But "there shouldn't be an affirmative obligation to just kind of say 'Hey, I've been around a lot of people,'" unless there's a particular reason for the worker to think they've been exposed, Madoshi said.

Others are taking a more cautious approach. Hyman said he's advising employers to err on the side of reducing virus risks when it comes to letting employees into the workplace following potential exposure. This includes asking workers whether they've taken part in mass gatherings: After a video depicting a tightly packed crowd of partygoers at the Lake of the Ozarks went viral over Memorial Day weekend, Hyman rewrote some clients' virus questionnaires to address gatherings of more than 10 people. If workers say they've recently been in a large group, employers should send them home, he said.

To the extent an employer sends workers home whether they've protested or partied, it doesn't face any legal risks, Hyman said. Whether to pay them is a question employers must answer themselves, he said.

"That's strictly a business decision [based] on where the employer falls on taking a stand for civil rights," he said.

Workers Wearing Black Lives Matter Gear

A handful of big-name companies have recently faced scrutiny for reportedly refusing to let workers wear shirts or other garb showing their support for Black Lives Matter on the job.

Starbucks quickly walked back a policy forbidding workers from wearing Black Lives Matter apparel after BuzzFeed reported on an internal memo putting such gear outside the company's dress code. And Whole Foods is facing worker protests after sending workers home for wearing Black Lives Matter masks, according to media reports. 

Workers who demand that they be allowed to wear clothes bearing political messages — which a Black Lives Matter mask may be considered for purposes of legal analysis — have fewer legal protections than workers who take part in protests, said Andrew Melzer, an attorney with Sanford Heisler Sharp LLP who represents workers in employment disputes.

"The laws that do provide some protection [for political activity] in certain places are really focused on conduct outside the workplace, so when you're talking about political activity in the workplace, I think it's a different story," Melzer said. Especially when workers serve the public, employers have broad leeway to set and enforce dress codes, he said.

Still, employers court some legal risk when they forbid workers from wearing Black Lives Matter masks, Hyman said. Such statements could be considered "protected concerted activity" under the NLRA and could also trigger Title VII's bar on retaliation when workers oppose racism in the workplace, he said.

In addition to these legal concerns, employers risk bad publicity and poor morale if they refuse to let workers wear Black Lives Matter gear on the job, Hyman said. To the extent customers complain about workers wearing their beliefs, employers may have a legitimate interest in tightening their dress code, he said. They could also use the complaint to take a stand. 

"You have the ability to flip the script and say, as an employer we support all races, creeds, colors, backgrounds, whatever, and we support the Black Lives Matter movement," he said.

--Editing by Aaron Pelc.

Correction: An earlier version of this story misstated a source's comments. The error has been corrected. 

Update: This story has been revised for clarity. 

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