Employers continue to grapple with how to respond to the constantly changing circumstances brought about by the COVID-19 pandemic. For employers with a unionized workforce, following the terms of their collective bargaining agreements and the provisions of the National Labor Relations Act (NLRA) adds another layer of complexity.
From an employer’s duty to bargain with its unions regarding workplace policies it may implement in response to COVID-19, to avoiding unlawful direct dealing with employees over schedule and hour changes and following collective bargaining agreements’ notice provisions for layoffs, management must be mindful of its labor obligations. In addition, unions are sending employers — particularly those in the healthcare industry — extensive information requests regarding COVID-19 planning.
Employers should carefully review the terms of their collective bargaining agreements and consult with labor counsel to determine their rights and obligations prior to taking any action. While circumstances are best analyzed on a case-by-case basis, the following FAQ’s will help employers navigate the complicated and difficult issues that unionized employers face in dealing with COVID-19.
Implementing New Workplace Policies
Under the NLRA, employers have a legal duty to bargain in good faith with unions regarding their employees’ wages, hours, and other conditions of employment. As employers update or craft new policies governing their response to COVID-19, whether on new safety protocols, layoffs, or sick leave, these policies likely trigger the duty to bargain. However, a collective bargaining agreement (CBA) may have provisions—including management rights, health and safety, leaves of absence, and PTO—that allow an employer to take action unilaterally on these issues.
Should the CBA not plainly grant the employer the right to implement needed policies, employers should promptly give the Union notice of the planned changes and an opportunity to bargain if requested, with the expectation that exigent circumstances may require fast action. Acts by a union that appear to be designed to delay an employer’s ability to move forward should be documented and you should consult labor counsel regarding lawful strategies and options in response.
Reducing Hours/Changing Schedules and Job Duties
In general, employers have some latitude to assign employees to different job tasks, as long as they are competent to do so and can perform the work safely. However, some CBAs may require that employees receive higher pay if they are working in a higher-rated job classification, and some contracts may be interpreted to require that employees in a specific job classification may volunteer extra hours before those duties are given to an employee outside of the classification. There may be other issues with assigning new or changed job tasks depending upon the contract.
Employers have a wide degree of discretion with regard to scheduling employees, subject to whatever restrictions are set forth in the CBA. An employer can typically change work schedules, unless there is language in the contract stating otherwise. The issue becomes more complicated if the employer desires to change a currently posted work schedule, however.
Reductions in an employee’s work hours are more complex. Most CBAs contain at least one provision—sometimes several—that address work hours, including in some cases, work-week definitions and guarantees. That language must be carefully scrutinized to determine if the CBA places specific restrictions on reduction of hours. Depending upon a CBA’s language and the circumstances, the employer may need to provide the union with notice and an opportunity to bargain before making changes. In any case, management must be careful to avoid “direct dealing” with employees regarding reducing their hours or changing their schedules in response to COVID-19.
Layoffs
Employers who are forced to lay off workers due to the economic impact of COVID may have an obligation to bargain with the union both over the decision to lay off employees, and the effects of the layoffs on those employees. Effects bargaining may include issues such as the order of layoffs, health insurance continuation, severance, bumping rights and return-to-work scenarios.
Neither decisional bargaining nor effects bargaining will necessarily prevent the actions the employer has determined are necessary, but it may impact the timing. Failing to bargain when legally obligated to do so, however, could expose an employer to potentially significant financial liability down the road should a union challenge the action. Additionally, employers should review their CBAs and be aware of any Union and employee notice requirements and seniority provisions that govern the timing of layoffs and their implementation.
Employees’ Refusal to Work
If an employee refuses to come to work out of fear of COVID-19, employers should consider first allowing an employee work from home, to utilize his/her sick time or PTO as provided in the CBA, and review whether any other leave-of-absence provisions of the applicable CBA apply that an employee could draw from.
An employer may have the ability to terminate or otherwise discipline an employee for a refusal to work, but this depends on whether the employee reasonably believes that he or she is in imminent danger. If an employee reasonably believes that he or she is in imminent danger, an employer may not terminate or otherwise discipline that individual for refusing to come to work under the Occupational Safety and Health Administration’s anti-retaliation guidelines. Thus, the common adage in labor law of “work now, and grieve later” may not apply. In enacting any discipline for a refusal to work, employers again should first review their specific contract language regarding discipline and discharge and consult labor counsel for advice in how to minimize risk.
In addition, employers should be alert to the fact that if multiple employees together refuse to come to work, this conduct likely would be considered to be “protected and concerted” activity under Section 7 of the NLRA.
Note: If an employee is actually ill or has a family member ill or a child home from school due to COVID-19, other federal or state leave laws may apply, such as FMLA or the newly enacted Public Health Emergency Leave and Emergency Paid Sick Leave (which applies only to employers with “fewer than 500 employees”).
Responding to Union Requests for Information
Many employers, particuarly in the healthcare industry, are being provided with extensive requests for information regarding the employer’s plans for responding to COVID-19, and employee absence, infectious disease, workplace exposure and safety policies. Many of these requests involve topics that are considered mandatory subjects of bargaining and therefore are presumptively relevant to the union’s role in representing employees.
When there is a duty to respond to these requests, employers should remember that (1) they are not required to create information that does not exist, (2) if a document or policy is responsive to a specific question, that document can be provided by way of answer; (3) a union’s requested turn-around time may not be reasonable, given the current circumstances; and (4) employers must be mindful of confidentiality concerns around employees’ medical conditions.
Contract Negotiation Obligations During a Pandemic
Employers who are either in the midst of or who may be approaching negotiations for a new or successor CBA still have a statutory duty to bargain despite the pandemic. That said, the majority of employers in this situation have neither the time nor the staff to dedicate to negotiations right now. Experience to date shows consistent cooperation between management and labor on postponing bargaining or, if necessary, turning to video conferencing to conduct negotiations. Parties may also wish to consider entering into extension agreements for expired/expiring CBAs to add a level of stability to the workplace until the pandemic subsides.
We strongly recommend against open-ended extensions that do not contain the right of the employer to insist on resumption of bargaining, in case concessions become necessary. Similarly, we recommend against making any commitments as to financial retroactivity once bargaining resumes and an agreement is reached. Far too much is still in flux to feel that such retroactivity commitments would be prudent.
Bottom Line
Frequent communications with union leadership may become an important aspect of an employer’s response to the changing circumstances of COVID-19. Employers are advised to be aware of the language of their collective bargaining agreements and how the requirements of the CBA and their obligation to bargain with the union impact and perhaps limit their ability to change the terms and conditions of their workers’ employment.