Don’t Overlook NLRA Rights During Coronavirus Outbreak

Allen Smith, J.D. By Allen Smith, J.D. March 6, 2020
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​During the coronavirus outbreak, employers need to comply with the National Labor Relations Act (NLRA), including the "concerted activity" protections that apply to nonunionized and unionized employers. Any concerted activity designed to increase workplace safety would be protected.

Even nonunionized workers who band together can't be disciplined or discriminated against based on protected concerted activity, which can include refusing to come to work for safety reasons or declining to work without a mask.

"The key in determining if any such activity is potentially covered under the NLRA is whether two or more employees are joining together to speak out or otherwise protest a practice or action," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "Single-employee action typically is not covered" by the NLRA.

In addition, any changes to the terms and conditions of employment of union-represented employees necessitated by the outbreak could result in disputes with a union, unless employers reach out to unions in advance.

Protected Concerted Activity

U.S. Surgeon General Jerome M. Adams has told the general public to stop buying masks, saying masks aren't needed to protect healthy people from the virus. But workers might still want to be allowed to wear masks on the job.

If the employer nonetheless makes it clear it doesn't want employees to wear masks and disciplines workers who do anyway, they may have a claim under the NLRA, said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia and New York City. He recommends putting employees who don't adhere to such a company policy on unpaid leave. That way if workers sue and prevail, they might be awarded only back pay.

There are other examples of protected concerted activity. Employees might refuse to work unless their work environment is sanitized, particularly if someone at the workplace had been sick. Or employees might protest co-workers not washing their hands.

If a job requires workers to share personal protective equipment or outerwear, employees might refuse to wear that gear and insist on having their own, Pryzbylski noted.

Already there have been disagreements over whether enough personal protective equipment is being provided, he added.

Nurses in Washington state and California say they "have had to beg for N95 masks, which are thicker than surgical masks and block out much smaller particles, and have faced ridicule from colleagues when expressing concerns about catching the highly contagious virus," reports The New York Times.

A group of employees may refuse to work next to someone who has symptoms, noted Michael Lotito, an attorney with Littler in San Francisco. If an individual with symptoms is ordered to go home, others might protest if the co-worker doesn't receive sick pay, he said.

"Be sure supervisors know about the concept of [protected] concerted activity," Lotito said.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

Work with Unions

Unionized employers should work with their unions about issues that might occur in light of the coronavirus outbreak.

Depending on the economic fallout from the outbreak, employers may face economic and supply-chain pressures that lead to temporary layoffs, Pryzbylski noted. "Employers should review their [collective bargaining agreements (CBAs)] to ensure they are aware of what rights they have to institute layoffs and how they would go about carrying out the reduction in force," he said.

In certain industries that may be hit extremely hard in the event this turns into a pandemic, such as transportation, it may become necessary for companies to implement cost-cutting measures, such as wage freezes or additional health care cost-sharing, he observed. "In those circumstances, a company may have to ask a union to enter into mid-contract negotiations on such issues."

The health care industry, which is becoming increasingly organized, may see extreme demand, requiring more work by unionized employees. Disputes over mandatory overtime—the company's right to require it and the premium pay for it—may arise, he said.

Even if employers have the right to make a unilateral change in their CBA, Segal said, they should reach out to unions first. If the workforce becomes unhappy and the union feels left out of the process, there may be covert resistance. If employers approach their unions as business partners and don't focus solely on the employer's rights, he said, most unions will be reasonable.

Pryzbylski said that sometimes it's counterproductive to be too accommodating to unions and that employers having unilateral rights in their CBAs to make rules but wanting unions' input might take another approach.

"Consider notifying the union in advance of the rules they'll be implementing and then seek the union's feedback on the same. In other words, the employer can discuss the effects of the impact versus the decision being made," he said.

In any event, plan ahead. "Meet with the union before issues arise to discuss contingencies," Lotito said. "This is not the time to be partisan. We are all in this together."

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