Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s Burning Question: Amid the pandemic our nation is facing my department has instituted new orders to prepare for the near future. The city and surrounding counties have issued “Stay at Home” orders and proclamations to contain the spread of the virus with exceptions for essential operations as defined in the proclamation. Our department has encouraged behavior to limit the spread of the virus since this started to unfold and warned that off-duty employment that can put the employee at risk is prohibited. Many of our firefighters are employed at surrounding fire departments as part-time members. Some are employed in the construction industry, and others work for EMS agencies. As long as the employee is adhering to the state’s requirements, can the department place restrictions on their off-duty work?
Answer: In ordinary times, a fire department that seeks to limit the outside employment of off-duty members faces a number of hurtles, including:
- substantive due process (must be able to show a reasonable basis for such a restriction)
- collective bargaining (impacts “wages, hours and other terms and conditions of employment”, so it is subject that has to be bargained)
- perhaps even 1st Amendment (eg. it would burden a firefighter’s right to serve as a pastor, journalist, etc.)
- lifestyle discrimination laws (state laws that prohibit an employer from discriminating against an employee who engages in a legal activity while off duty).
In addition there is the question of whether local law (city charter, local ordinances) would allow such a restriction on employees. It is not to say a fire department cannot prohibit or restrict outside employment, merely that there are certain barriers to doing so.
However these are no ordinary times.
Where an employer has already exercised the right to restrict off-duty activity by requiring members to get permission to engage in off-duty work, prohibiting off-duty work that increases the risk of exposure would be less of a challenge.
Another barrier would be eliminated in a jurisdiction where an employer does not have to collectively bargain. However, even in a collective bargaining jurisdiction, a well drafted management rights clause may be controlling. Some CBAs authorize management to suspend parts or all of the agreement during declared disasters. Some reserve the right of management to take what ever steps it deems necessary during disasters to carry out its mission and responsibilities. Arguably, limiting off-duty employment might be one such step.
Another consideration may be whether the state or local declaration of emergency contains language authorizing such an action to ensure the availability of first responders and emergency medical personnel.
The remainder of the answer will turn on state and local law. There are too many variables for me to even venture a guess as to how it may turn out. However, one reality has to be considered: assuming a firefighter sought to challenge such a directive, and assuming the courthouse were to be open (many courts are closed except for emergency matters), one has to wonder just how sympathetic a judge would be in issuing a restraining order or injunction against a fire department.
