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. Employers should think twice before restricting off-duty employee conduct, however, to ensure they are not inadvertently violating federal or state laws.
The National Football League is one employer taking steps to regulate off-duty conduct to reduce risks associated with the Covid-19 pandemic. After months of negotiations, the NFL reached an agreement with the players’ association that restricts the players’ off-duty conduct in some surprising ways. Keep in mind that the NFL and the players originally agreed to a collective bargaining agreement back in February 2020, before the World Health Organization declared Covid-19 a pandemic.
Limits on Indoor Events
Under the revised arrangement, players are prohibited from attending indoor night clubs (unless they are wearing personal protective equipment and there are no more than 10 people in the club), concerts, and events that are prohibited by state and/or local regulation, executive order or a law implemented due to Covid-19. An earlier draft of the revised agreement prohibited players from attending indoor religious services that allowed attendance above 25% capacity. The final agreement deleted this provision, which may have run afoul of legal protections of religious activity. Instead, the NFL and the players’ association agreed to a restriction on events that are barred by state and/or local jurisdictions.
If a player violates these rules, he may be disciplined by his team based upon the severity of the violation. If a player is disciplined, the player and the players’ association may challenge whether the player engaged in the conduct and/or whether the conduct warranted the discipline imposed by the team.
Playing Season Is Goal
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 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 lawful off-duty conduct vary by state.
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 also 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. 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.
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. A rule restricting off-duty attendance at religious services, like the rule contained in the early draft of the NFL’s collective bargaining agreement, might be challenged as discriminating against persons based on religious beliefs. Also, barring attendance at religious services could be attacked as a refusal to accommodate employee religious beliefs.
These legal landmines may be why the NFL and the players ultimately removed the provision from the collective bargaining agreement that prohibited players from attending certain indoor religious services. The revised agreement, which makes no mention of religious activity, is less susceptible to a legal challenge on the grounds of religious discrimination or failure to accommodate religious practices. Additionally, the revised agreement had another added benefit: It arguably gives the NFL broader protection due to its prohibition on any event barred by state and/or local regulation.
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 might protect them from discipline. In fact, a number of NFL players, including Russell Wilson and J.J. Watt, tweeted out their concerns earlier this offseason about the NFL’s lack of a plan regarding player health and safety. Perhaps with the NLRA in mind, league management did not discipline the players for voicing these concerns.
Finally, as the old adage goes, “just because you can does not mean you should.” Restricting lawful off-duty conduct may 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.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Arslan Sheikh is an associate and Rebecca Kopp Levine is a partner in Porter Wright’s Labor & Employment practice group, where they help employers proactively manage their workforce issues to help them reduce their risk and improve the productivity of their workforce.