United States

If an employee is absent from work and using “sick” or other leave for improper purposes, the employee may be disciplined for improper use of sick leave. If an employee is absent from work and using available leave for allowable purposes, even if the reason given was different than the actual reason, then no discipline would normally be applied. If an employee is absent from work without following employer-required call-out or absence procedures, the employee can also be subject to discipline for this independent reason. Normal employer investigation and discipline procedures should be followed, including those outlined in any collective bargaining agreement.

Employers should be cautious when considering the validity of a medical certificate for a work absence. Most states do not require a medical certificate to be from a licensed medical doctor, and nearly any licensed or certified medical or mental health care provider certification will be sufficient from a credentials standpoint. If an employer suspects the certificate itself is fraudulent, such as being falsified by the employee, the employer has the option of contacting the person or office listed on the certificate to confirm the authenticity of the certificate. Additionally, an employer may find other evidence unrelated to the medical certificate that calls the employee’s absence into question, such as social media posts with pictures of the employee at a match or watch party, in which case the employer can investigate and potentially impose discipline for the employee’s false statement(s) regarding the work absence. Normal employer investigation and discipline procedures should be followed, including those outlined in any collective bargaining agreement.

Employers in most states have the ability to conduct “reasonable suspicion” tests for drugs or alcohol, provided the evidence supporting the existence of “reasonable suspicion” is articulated and documented at the time or shortly after the testing occurs. “Reasonable suspicion” could include the results of an on-site employer-administered breathalyser, if available and if the employee consents to the breathalyser test. Employees cannot be physically forced to take a breathalyser test; employees potentially can be disciplined for refusal to take a breathalyser test. Some states will require the employer to have a written, neutral policy in place allowing for drug or alcohol testing. Public and union employees have additional rights relating to drug and alcohol testing. Applicable federal and state laws as well as collective bargaining agreements should be consulted on drug and alcohol testing of current employees. Any testing should be done by a neutral laboratory, and transportation and testing costs paid by the employer. If an employee is suspected of being under the influence of drugs or alcohol at work, the employee should not be permitted to drive themselves anywhere (employers may wish to offer and pay for a taxi or other transportation). Employers should be aware that a dditional restrictions apply to pre -employment drug and alcohol screening.

Employers generally have the right to prescribe the manner and method of work performance, including working hours for employees. In some situations, federal or state laws or collective bargaining agreements may dictate specific work hours. If collective bargaining agreements apply, any change in working hours may need to be negotiated with the union. Employers should also consider whether any shortened work shifts will be considered paid or unpaid time off; whether employees will be required to use available leave if a shortened work shift is considered unpaid time off; whether all shifts will simply be moved two to three hours ahead or back to accommodate viewing; and/or whether the employer will simply consider the two to three hours as “regular work” time and pay all scheduled employees as if they were working. Employers should consider whether work shift adjustments will impact overtime as well.

Few federal and state laws specifically address this issue; however, employers should be aware that if they are knowingly allowing or facilitating the use of illegal streaming services (e.g. pirated showings of matches), there is a risk of civil or even criminal liability. Many employers have written policies regarding the appropriate use of company resources, including computers and internet access, and forbid unauthorized or personal use of such company resources. Employers without such policies may want to adopt “appropriate use” policies before the World Cup begins, and/or notify employees of appropriate and inappropriate uses of company resources. Assuming employees are or should be aware that using company resources to watch World Cup matches is unauthorized, employers may choose to conduct surveillance or investigations into suspected improper use of company resources. Often, a company’s IT personnel or consultant can quickly determine employee use of company computer or internet resources to watch matches or engage in unlawful activities online. If an employee is suspected or confirmed to be using company resources in an unauthorized manner, the employer should take prompt and appropriate disciplinary action, applying the same process and disciplinary action to all known persons involved to avoid any allegations of selective or discriminatory action by the employer. Another option for employers is to set up one viewing area for World Cup events where employees are authorized to watch during their rest breaks or meal periods, informing employees that this authorized viewing area is the only authorized time and place for employee World Cup viewing.

Employer-sponsored parties are a constant source of problems. For any employer-sponsored or employer-supported watch parties (on-site or off-site if paid by the employer), employers should clarify for employees that all workplace rules and policies relating to alcohol/drug use, harassment, and all other rules and policies apply, and employees are expected to remain professional and respectful at all times. Another option is for employers to specifically not sponsor or support any watch parties, and simply allow staff to organize their own parties if they so choose, making clear that the employer is not sponsoring or supporting any particular parties. Additionally, employers should instruct managers and supervisors to avoid any perception that attendance at any event or party is required or work-related (unless the employer has scheduled marketing or networking events relating to World Cup). Employers could be held liable for manager or supervisor or even employee conduct outside the workplace, including harassment or discrimination or sexual assault, if the event could be considered employer-sponsored or employer-supported.