As the COVID-19 pandemic continues to impact businesses across the country, employers are faced with the difficult question of how to keep their workplaces safe. Some employers are attempting to restrict off-duty employee conduct to limit high-risk behavior.
The National Football League (NFL) is one employer taking steps to regulate off-duty conduct to reduce risks associated with the COVID-19 pandemic. The NFL has apparently reached an agreement with the players’ association that restricts the players’ off-duty conduct in some surprising ways. Players are prohibited from attending indoor night clubs, concerts, and even indoor religious services that allow attendance above 25 percent capacity. If a player violates these rules and then tests positive for COVID-19, he will reportedly not be paid for any games he misses and future guarantees in his contract will be voided. The NFL and the players’ association have presumably entered into this agreement for two chief reasons: to minimize COVID-19 outbreaks among teams and, in turn, to increase the likelihood that NFL football can be played this season. Commentators have thrown some challenge flags at the agreement, however, due to its potential for punishing employees for engaging in lawful off-duty activities.
The NFL’s approach may sound appealing to employers that seek to protect their workforce and minimize exposure in their workplace. Employers that penalize lawful off-duty conduct, however, face legal and practical risks. Laws protecting employees from discipline for their lawful off-duty conduct vary by state, and levels of protection will vary by where the conduct takes place. Some states, like California and Colorado, protect employees broadly for any lawful off-duty conduct during non-working hours.
Public and private sector employers alike must be cautious in limiting employee conduct off-duty, because doing so may run afoul of federal and state constitutional protections for freedom of speech and association. And, any effort to restrict an employee’s religious observances off-duty should be carefully assessed under federal and state laws prohibiting religious discrimination and requiring reasonable accommodations for employees’ religious practices. Remember, too, that state constitutional protections may be broader than those afforded by the U.S. Constitution, and state laws may create additional employee privacy rights.
Employers must also be mindful of protections under the National Labor Relations Act (NLRA) for “protected concerted activity.” The protection applies to all non-supervisory employees, not just employees who are in a union, and limits what an employer can do if it becomes aware of employees complaining about terms and conditions of employment. For example, if employees complain on social media about their employer’s COVID-19 workplace safety protocols, the NLRA likely protects them from discipline. Efforts to restrict this type of off-duty conduct could create additional legal problems.
Finally, as the old adage goes, “just because you can does not mean you should.” Restricting lawful off-duty conduct will have potential employee relations implications. Employers that punish their workforce for failing to abide by even seemingly reasonable restraints may face pushback from employees who feel their privacy rights are not respected.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.