COVID-19 (or coronavirus) presents a formidable health and safety challenge to employers, and unionized employers also must address issues in the context of their obligations under the National Labor Relations Act (NLRA) and a collective bargaining agreement. The broad range of issues includes both mandatory subjects of bargaining and business decisions that impact the employees of the bargaining unit. Such issues include health and safety concerns, attendance and staffing issues, wage and hour issues, leave issues, changes in work schedules, layoffs, and temporary reductions in hours or closure of the business to reduce infection rates. Missteps in effectuating these major changes can lead to violations of the NLRA and an increase in the incidence of workers refusing to work. Employers’ ability to navigate these issues successfully requires an understanding of their rights under both the collective bargaining agreement and federal law in this novel situation. Here are some key considerations and proactive measures employers can take to facilitate timely and decisive employment actions.
Perform a Collective Bargaining Agreement Audit
Employers with a unionized workforce should conduct a collective bargaining agreement audit to understand the details of the relevant provisions in the context of the current circumstances. These provisions may need to be revised or renegotiated, depending on management’s rights under the collective bargaining agreement. The provisions impacted include the following:
- Health and safety provisions relating to protection of the work environment, consultations with the union or union committee as to safety issues, use of employee teams to communicate with workers about workplace hazards and prevention and control techniques, meetings with local or national labor management committees regarding procedures to protect the workplace and to exclude exposed workers and social distancing practices;
- Provisions relating to employees who refuse to work or are absent due to fears about COVID-19;
- Attendance rules that impact workers’ pay, and enforcement provisions which may need to be reviewed and updated to provide the flexibility necessary to encourage workers to stay home due to quarantine, exposure or illness related to COVID-19;
- Paid time-off rules, and the types and amounts of leave employees have available or can accrue in the event of quarantine, illness, school closure or caring for a family member;
- Staffing rules, job classifications, changes in work schedules, and requesting employees to perform work outside of their job description in the event of a high absentee rate due to the spread of COVID-19;
- Wage reimbursement provisions for employees that are ill or quarantined but do not have paid sick leave or paid time off;
- Break and lunch periods as they relate to social distancing issues;
- Layoff and reduction in workforce procedures and related worker wage issues; and
- Management rights provisions.
An employer’s ability to unilaterally alter mandatory subjects of bargaining and terms that impact a bargaining unit will depend largely on the plain language of the collective bargaining agreement. The 2019 NLRB decision, MV Transportation, adopted the contract coverage standard expanding the employers’ right to make unilateral changes to the terms and conditions of a collective bargaining agreement. Under the contract coverage standard, where the plain language of the collective bargaining agreement broadly grants employers the right to implement new policies or procedures or to revise existing ones, an employer may make unilateral changes to the collective bargaining agreement, provided no other provision of the agreement limits those changes. Even where the employer can act unilaterally, it may still have the obligation to bargain over the effects of any such actions.
Additionally, a force majeure provision in the collective bargaining agreement may permit employers to take unilateral immediate action in the event of compelling economic exigencies, which are extraordinary, unforeseen events with major economic impacts. The COVID-19 pandemic is a novel virus that is transmits from person to person easily and can cause severe illness. Indeed, it may constitute a force majeure, and employers should evaluate the specific circumstances and the language of the collective bargaining agreement as it relates to the force majeure provision.
In the event a collective bargaining agreement does not permit unilateral changes, an employer will have a duty to bargain with the union over the changes to the terms and conditions of employment. The COVID-19 pandemic, however, is rapidly evolving and forcing employers to make abrupt changes in their operations. If this is the case, employers should give the union notice of the change, as well as the reason for the proposed change and for the need to act quickly. If impasse is reached the employer may then implement the changes.
Comply with Emergency Federal Laws and Notify Bargaining Representative
Employers must also comply with emergency government legislation that affects the terms and conditions of employment and have notice and duty to bargain obligations with some aspects of the implementation of the law’s mandates.
On March 18, 2020, the White House signed into law the Families First Coronavirus Response Act which provides emergency paid sick leave and emergency paid family and medical leave to workers of employers with 500 or fewer employees and covered public sector employers. Under the law, covered employers must provide full-time employees with two weeks of paid sick leave capped at $511 per day in the event the employee is quarantined or exposed or infected with COVID-19, or two weeks of paid sick leave capped at $200 per day if the leave is used to care for an individual who is quarantined or symptomatic for COVID-19 or used to care for a son or daughter as a result of a school or childcare facility closure or unavailability of a child care provider due to COVID-19 precautions. Paid sick leave for part time employees is calculated based on the average number of hours an employee works over a two-week period. Employees are immediately eligible for emergency paid sick leave with no waiting period, and “regardless of how long the employee has been employed by the employer.”
With regard to emergency family and medical leave, employers must provide up to 12 weeks of job protected leave for employees who have been employed for at least 30 days by the employer providing the leave and who are unable to work or telework due to child care demands related to school closure or unavailability of a child care provider due to a public health emergency related to COVID-19.The initial 10 days is unpaid unless the employee elects to substitute accrued paid vacation, medical, personal or sick leave. The remainder of the leave after the initial 10 days is paid at two-thirds of the regular rate of pay with the amount of paid leave capped at $200 per day and $10,000 in the aggregate. For part-time employees whose work hours vary, the number of hours is based on an average number of hours the employee was scheduled to work per day over a six-month period.
For employers under a multi-employer bargaining agreement, the employer may fulfill its obligations under the new law by “making contributions to a fund, plan or program based on the paid leave each of its employees is entitled to,” provided that the employees are able “to secure pay from such fund, plan or program for the hours they have worked” as paid leave under the law.
Under the 2017 Board decision, Western Cab Company, even though employers are compelled to provide the expanded leave benefits to employees under the emergency federal legislation, employers must “provide the collective bargaining representative notice and an opportunity to bargain over the discretionary aspects of such change.” Employers may have discretion over some aspects of notification and enrollment procedures and other aspects of compliance with the new law. Without similar changes in kind or degree in the past, employers must give bargaining representatives notice and an opportunity to bargain over discretionary issues related to implementation of the new law.
The law is effective on April 1, 2020 and sunsets on December 31, 2020.
Protected Concerted Activity
As employers field questions and concerns from employees related to COVID-19, employers must recognize that Section 7 of the NLRA protects the rights of employees to engage in concerted activity for purpose of …”other mutual aid or protection.” Although concerted activity refers to actions taken by two or more employees for their mutual aid and protection,” it can also refer to the actions of a single employee who engages in protected concerted activity by “acting on the authority of other employees or bringing group complaints to the attention of the employer.” Employees who raise concerns about health and safety issues in the workplace related to COVID-19 exposure or personal protective equipment may be protected under §7. Similarly, an employee’s refusal to work as a result of the fear of exposure to COVID-19 or safety issues related to COVID-19 may constitute protected activity if the concerns or refusal is made on behalf of more than one employee.
Be aware of employee protection under §502 of the Labor Management Relations Act
Even one employee, however, who refuses to work due to health and safety concerns in the workplace related to COVID-19, may be protected under §502 of the Labor Management Relations Act (§502). As demonstrated in the 2000 Board decision, TNS, Inc., Section 502, also known as the “Savings Provision “ of the Act protects an employee(s) from permanent replacement if the employee(s) stops work “in good faith because of abnormally dangerous conditions.” Work stoppages protected by §502 do not violate no-strike provisions in a collective bargaining agreement and prevent an employer from terminating and permanently replacing an employee who refuses to work.
While it is unclear whether §502 will apply to the current pandemic, it is certainly possible. The current pandemic is rapidly spreading throughout the country resulting in declarations of national and state emergencies, government directives to close businesses and government agencies, and the imposition of lockdowns in some areas of the country in an attempt to slow infection rates. Given the lack of knowledge about the severity of the illness and the existence of mortality rates higher than those associated with the seasonal flu or H1N1, COVID-19 could be reasonably construed to present an abnormally dangerous condition in the workplace.
When faced with concerns and refusals to work, employers should consider the risk of exposure associated with the type of work; control and preventive measures undertaken in the workplace; if relevant, personal protective equipment; training provided to employees and compliance with safety and health authorities. Employers must analyze the circumstances to determine whether the employee’s refusal to work is protected.
Editor’s Note: This article was written by guest authors Terry Potter, Jon Anderson, and Tom O'Day of the law firm Husch Blackwell, and is reprinted here with permission. Terry Potter is a member of the AGC Labor and Employment Law Council.