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Union and Open-Shop Contractors Alike Should Consider the NLRA When Workers Refuse to Work Based on COVID-19 Safety Concerns

June 18, 2020

Whether your workplace has remained open throughout the COVID-19 pandemic, is just reopening now, or will do so sometime later this year, employers should be prepared for the possibility that some employees may refuse to work due to COVID-related safety concerns.

While most employers are aware of the need to comply with COVID-19-related occupational safety and health (i.e., OSHA) requirements, and similar requirements under state and local executive orders, employers should also keep in mind their obligations under the National Labor Relations Act (NLRA), which applies to most non-supervisory employees in the private sector and may provide protection to both unionized and nonunionized employees who refuse to work based on COVID-19-related safety concerns.

Section 8(a)(1) of the NLRA generally prohibits employers from terminating or disciplining employees based on their engagement in protected concerted activity. Refusing to work based on safety concerns may be considered protected concerted activity where employees have a reasonable, good faith belief of unsafe working conditions. In order to benefit from this protection, the refusal generally must come from two or more employees acting jointly, although, a single employee’s refusal may be considered protected concerted activity if that employee is acting on behalf of other employees, trying to induce group action, or seeking to prepare for group action.

The NLRA also has a specific provision—Section 502 of the Labor Management Relations Act—which prohibits employers from permanently replacing workers who refuse to work because of “abnormally dangerous conditions.” Specifically, Section 502 provides that a work stoppage by “an employee or employees in good faith because of abnormally dangerous conditions for work” will not be deemed “a strike.” While Section 502 typically arises in the context of unionized work stoppages, at least one circuit court has indicated that such protections also extend to non-unionized employees. For a work stoppage to be protected from permanent replacement under Section 502, employees must have a good faith belief that “abnormally dangerous conditions” exist and be able to support that belief with objective evidence.

For either source of protection, the National Labor Relations Board and courts have provided little to no guidance as to when employees have a reasonable and good faith belief of unsafe working conditions in a context similar to the current COVID-19 pandemic. But, it is clear that the inquiry involves a variety of factors. One relevant factor is whether the dangers identified by employees are inherent in their job duties and were known to them when they assumed employment. This factor will be particularly important for employees who began working after the COVID-19 pandemic already started or in workplaces where the risk of contracting a disease or infection is arguably a danger inherent in the work, as may be the case with health care workers and first responders.

Others factors the Board and courts may consider relate to the employees’ particular working environment, such as whether they are in frequent contact with co-workers, customers, or outside vendors, whether they work in close physical proximity to one another, and whether they work in an area with a high rate of infection. The safety precautions taken by employers will be important as well, particularly whether they are conforming to local, state, or national requirements or guidance on proper safety protocols regarding disinfection, masks, social distancing, making hand washing and sanitizing stations available, and regular health screenings. The Centers for Disease Control, among other sources, offers guidance on best practices for prevention of COVID-19 in the workplace. For guidance specific to construction sites, see the AGC web pages here and here, and OSHA’s web page here.

Additionally, in the context of a unionized workplace, applicable collective bargaining agreements or safety rules may specifically address the circumstance in which employees refuse to work due to safety concerns, and more generally, the consequences of employees engaging in work stoppages in contravention of the agreement. These contractual provisions must be taken into consideration before issuing discipline on the basis of a refusal to work.

On a more practical level, while consideration of discipline may be necessary in some circumstances, a more productive approach for most employers during the COVID-19 pandemic is to focus on taking active measures to address actual or potential employee safety concerns, with an emphasis on beefed-up safety measures and protocols and increased communication with employees. It is critical to regularly communicate with your workforce (and union representatives, if applicable) about your COVID-19 response plan, including safety measures and protocols, leave and work-from-home policies, and workplace exposures when warranted (and consistent with applicable confidentiality rules). A consistent, fact-based communication strategy that is responsive to employees’ concerns will provide your workforce with some piece of mind and help avoid unnecessary anxiety and disruption.

Some employees may not feel safe returning to work regardless of the measures their employers take. In those cases (particularly when it comes to employees at high risk for severe illness from COVID-19), if the employee is not entitled to take paid leave (including consideration of new requirements under the Families First Coronavirus Response Act and any other applicable paid leave laws), employers should consider unpaid leave where feasible. Ultimately, if leave is not available, employers should consult counsel prior to disciplining or terminating employees who return to work, and to the extent discipline or termination is warranted, employers should treat such employees consistent with existing attendance policies.

Editor’s Note:  This article was written by Kayla Ernst and Manolis Boulukos of the law firm Ice Miller LLP and is published by AGC with permission. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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