Questions and Answers on Employment Issues During External Protests

Do  I have to allow an employee to take time off to attend a protest?

No, neither state nor federal law requires employers to provide time off to employees who wish to attend a protest. Employers may treat an employee's time-off request to protest as they would any other leave request. Internal policies regarding advanced notice, scheduling needs, use of paid time off, etc., would apply in these circumstances. Employers may also discipline employees who violate these policies and procedures just as they would any other employee.

Can I discipline an employee for calling out sick or missing a shift because he or she is participating in a march or protest?

Employers may discipline any employee who violates internal attendance or leave policies when done so consistently. For example, if an employer would discipline an employee who called out sick but was shown to be at a ballgame that day, the employer could do the same if that person were instead at a protest.

Are employees allowed to bring protest materials into the workplace?

This is governed by employer policy. Signage, apparel and other items that individuals may use to communicate a protest message may be prohibited from the workplace. Employees who claim first amendment rights should be educated that those rights apply to the government not being able to prohibit free speech and not private employers. Review policies such as dress codes, office décor and employee conduct to ensure the policy language addresses such materials.

What employee speech is protected in the workplace?

While First Amendment rights to free speech do not apply in private workplaces, employees do have the right to talk about possible unlawful conduct in the workplace. Under various federal laws, employees may complain about harassment, discrimination, workplace safety violations and other issues. However, employees don't have the freedom or right to express racist, sexist or other discriminatory comments in the workplace. 

Can I fire an employee who was arrested at a protest?

Terminating an employee for lawful off-duty conduct may be a violation of state law. However, if an employee engages in unlawful conduct during a protest, the employer will need to investigate the circumstances to determine if the conduct impacts the employee's ability to perform his or her job. An employee may be suspended or terminated if the employer's investigation indicates that the employee did in fact engage in conduct that makes the individual unfit for his or her position.
If an employee's arrest causes the employee to be absent from work, the employer's normal attendance policies will apply.

Do we have to allow an employee who participated in protests with large groups of people to return to work?

Employers should continue to follow their internal practices regarding screening employees for COVID-19 infection in the workplace regardless of the employee's participation in protests. Asking employees about their lawful off-duty conduct and/or denying work due to such conduct could be problematic. Instead, employers may want to give employees the ability to take paid time off or to work remotely after engaging in activities where social distancing isn't observed.

Related reading:

Can We Prohibit Staff from Attending Political Protests?
Can Employees Be Fired for Off-Duty Conduct?