When can a hospital bar access to the premises when employees are off duty? According to the NLRB in a recent case, it will depend on the hospital’s rule, how it is written and how much discretion the hospital has in interpreting the meaning of “hospital-related business.”
Cafeteria Operator in the Hospital
The hospital in this case operates an acute care facility that employs over 1,250 workers. Patients and visitors enter the facility through two entrances. Each entrance has a staff desk where visitors and patients are required to sign in. The hospital provides each employee with an identification badge. The badge allows them to enter the hospital through employee entrances and enter areas inside the hospital not accessible to nonemployees. A separate employer, Sodexo, operates a cafeteria in the hospital and prepares and serves food to the patients. Members of the public are not allowed in the cafeteria. Sodexo is required to have its employees follow the same work rules that the hospital requires of its employees.
The Hospital’s Off-Duty No-Access Rule
The hospital has consistently maintained the following rule regarding access to its facility:
Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.
- An off-duty employee is defined as an employee who has completed his/her assigned shift.
- Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
- Any employee who violates this policy will be subject to disciplinary action.
The hospital has enforced the rule by disciplining employees who gained access to the interior of the hospital in violation of the rule, including, in this case, off-duty employees who entered the hospital and engaged in union activities. When those employees were disciplined, the NLRB got involved. Ultimately, the NLRB held that this hospital’s off-duty no-access rule was lawful.
When Are No-Access Rules OK?
Since 1976, the NLRB has held that an employer’s rule barring off-duty employee access to a facility is valid only if it (1) limits access solely to the interior of the facility; (2) is clearly disseminated to all employees; and (3) applies to off-duty access for all purposes, not just for union activity.
Medical Care and Patient Visiting
This hospital’s no-access rule was found to meet all three criteria. When visiting a patient or receiving medical treatment, off-duty employees entering the hospital under either of these circumstances must do so using public entrances and must sign in like any other visitor or undergo the admitting process like any other patient. Their purposes for entering the hospital are unrelated to their employment; they seek access not as employees but as members of the public, and access is granted or denied on the same basis and under the same procedures as for the public. Significantly, the NLRB expressly declined to require that health care employers limit their employees’ access only to receive medical care or to visiting friends and family members receiving medical care, in order be lawful.
Hospital-Related Business
The NLRB went on to hold that that the policy’s exception for conducting “hospital-related business” is lawful. Crucially, the NLRB said, the policy expressly defines hospital-related business narrowly as “the pursuit of the employee’s normal duties or duties as specifically directed by management.” The NLRB relied on “the most natural reading” of the policy. In other words, the provision is not really an exception at all but a clarification that employees who are not on their regular shifts but are nevertheless performing their duties as employees under the direction of management may access the facility. Although these employees would be off duty by the policy’s definition, they are on duty under the term’s ordinary meaning. Thus, the provision allowing access for hospital-related business does not violate the third requirement that a valid no-access rule must apply to off-duty access for all purposes.
The Difference Between This Policy and Unlawful No-Access Policies
Finding a coherent thread in interpreting the lawfulness of an employer’s no-access policy can be a challenge. Indeed, the NLRB seems to have found policy language virtually identical to the policy in the present case to be unlawful. It seems it all depends on the amount of discretion an employer has in determining when an employee is on duty. Unlike the policy here, the policy in the two cases we wrote about previously allowed access for “[h]ealth center sponsored events, such as retirement parties and baby showers,” and gave no indication that employees would be paid or considered to be working during these events. See our July 6, 2012 blog “NLRB Says NO! to “No-Access” Rule for Off-Duty Employees” that suggests that too much employer discretion in defining on duty is what will make a policy unlawful. The rule found unlawful in that case in effect gave the employer unlimited discretion to permit off-duty employee access simply by sponsoring an event. In the present case, the exception covers only employees who would understand themselves to be on duty.
Lesson for Employers
Despite the inherent confusion in the NLRB’s analysis of no-access rules, employers should review their current policies to make sure that their no-access policy tracks the language of the policy in this latest case. Too much discretion in determining when an employee is on duty on the employer’s part can seemingly make the entire policy unlawful. According to the NLRB’s latest statement, the real determining factor will be the employee’s own understanding of when they consider themselves to be on duty. That standard may be very hard to meet.
Reference: Sodexo America, LLC and Keck Hospital, (NLRB November 19, 2014).
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
