COVID-19/Coronavirus, Employment Law

COVID-19 FAQ: NLRA

Surgeon adjusting hairnet.

Last updated April 1, 2020.

This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19. State and local laws may apply, and medical assessments may change, resulting in different conclusions.

NLRA

  • Answer 1. Potentially. Under the National Labor Relations Act (NLRA), nonsupervisory employees in unionized and non-unionized settings may have the right to refuse to work in conditions they believe to be unsafe. (This is considered an outgrowth of concerted activity for the mutual aid and protection of coworkers.) To refuse to work, employees should have a “reasonable, good-faith belief” that working under certain conditions would not be safe. Notably, the NLRA protects employees if they are “honestly mistaken.” There is a separate analysis under Section 502 of the NLRA for unionized employees. In that context, a concerted refusal to work over safety concerns is protected if the assignment is “abnormally dangerous.” Unionized employees must have a “good faith belief” supported by “ascertainable” and “objective evidence” that there is an “abnormally dangerous” working condition. Refusal to work in this context is protected, even if there is a “no strike” clause in the relevant collective bargaining agreement and such employees may not be permanently replaced.

  • A2. Maybe. Employers should first check their collective bargaining agreements (CBAs) to see if the contract covers the issue. That includes checking if the CBA gives the employer the right to decide and/or proceed on the particular issue under consideration. If yes, then the National Labor Relations Board’s (NLRB) MV Transportation contract coverage standard likely gives the employer the right to make a decision and implement it without bargaining. Even in those situations, the employer may have a duty to bargain over the effects of the decision. For example, if a contract gives an employer the right to shut down a particular division, the employer can do so in response to COVID-19 without bargaining, but may have to bargain upon request with the employees’ bargaining representative over issues such as whether employees will be redeployed, laid off, provided with any leave options, and the like.

    Employers should review “savings” language in CBAs, which may permit employers to make changes unilaterally in order to comply with changes in law. Arguably, depending on the specific language, compliance with governmental directives may be covered by such clauses.

    If a contract does not give the employer the right to proceed unilaterally, then the employer likely has a duty to bargain over changes to mandatory subjects of bargaining (i.e., wages, hours, terms and conditions of employment), subject to an economic exigency, discussed below.

  • A3. An employer may be privileged to act unilaterally where “economic exigencies” compel “prompt action.” The employer bears the burden of proof, but the NLRB has applied this exception in cases involving “extraordinary events” that

    • Have a “major economic effect;”
    • Require the employer “to take immediate action;” and
    • Are “caused by external events,” “are beyond the employer’s control,” and/or are “not reasonably foreseeable.”

    The NLRB has found such an economic exigency to exist when an employer closed its facility and laid off employees in response to a government-ordered mandatory evacuation. In the case of COVID-19, the employer may be able to carry this burden where, for example, a governor shuts down the employer’s type of business.

    If an employer has notice—even as little as 48 hours—of the upcoming change, dependent upon the circumstances, it may have a duty to provide notice to the union and an opportunity to bargain. In that case, the employer may notify the union of the deadline for action and expect to conclude bargaining—to agreement or impasse—within that deadline. The shortened deadline should be based on a reasonable assessment of the need for quick action.

  • A4. Many of the information requests employers are getting are related to the employer’s plans for providing paid time off, employee safety at work, and potential layoffs. These types of issues involve mandatory subjects of bargaining, so employers probably have a duty to provide the relevant information, but keeping the following considerations in mind:

    • The duty is to provide information that already exists. Employers do not have to speculate or create information they do not have.
    • If the request involves specific questions, and a document or policy provides the answers, then providing the document or policy to the union satisfies the employer’s duty to respond.
    • For information that remains in development, such as a policy relating to whether and/or how the employer plans to pay employees who cannot come to work due to an exposure or other quarantine, there may be a continuing duty to provide the policy to the union when it becomes available.
    • Some requests include a very fast turnaround time. There often is a tension between a fast response and a complete response. There are no hard and fast rules on how quickly employers must respond. Consider the reasonableness of any requested timing based on the circumstances, the amount of information requested, and competing responsibilities of those who are required to gather the information.

  • A5. This is confidential employee medical information, and employers must handle it with care. Employers may be prohibited from releasing such information to third parties under state privacy laws and/or the Americans with Disabilities Act. Employers should carefully explore a union’s explanation for why it wants this information, notify employees that the union has asked for it, and request a release. If an employee is not willing to release the information to the union, that employee reaction should be clearly communicated in an objection to the union’s information request. Statistical data without employee-identifying information, such as the number of employees who have tested positive, is not confidential medical information.

  • A6. Unions may have a right to enter a workplace to inspect it to review health and safety issues. If an employer receives such a request, it has the right to request from the union the reason for the request and the qualifications of the individuals performing the inspection. It also can propose to limit the number of union representatives who participate. Union representatives may not be disruptive during the inspection. The employer and the union should follow any external government orders and health authority recommendations regarding access to workplaces, how many people can be in close proximity, and the like.

  • A7. Employers in contract negotiations should review all of the government directives and health authority guidance related to person-to-person contact and proceed accordingly. While bargaining is often best conducted in person, that may not be an option—or safe—during the current pandemic. If an employer wants to continue bargaining, it should explore virtual options, such as exchanging proposals by email and conducting meetings through phone or video conference. These options are similar to other types of procedural bargaining issues and typically should be discussed with the union representatives.

    Another option to consider is entering into an extension agreement and resuming bargaining after the current crisis is over. That may be especially appropriate in certain industries where management and bargaining team members will not be available for bargaining, either because of their workload or because of layoffs.

  • A8. Generally, yes. An employer (or union) may modify previous proposals based on changed circumstances that have arisen since the proposal was made. What constitutes changed circumstances should be carefully reviewed, and any tentative agreements the parties have made in bargaining need to be considered carefully.

  • A9. The NLRB announced agency-wide telework requirements through April 1, 2020. Some Regional Offices are closed temporarily and others will remain open to the public from 10:00 a.m. until 2:00 p.m. each business day. Even for those that remain open, there will be minimal staffing in each. The Board indicated it intends to continue actively enforcing the federal labor laws.

  • A10. The NLRB issued a press release on March 19, 2020, suspending all representation elections, including mail ballot elections, through April 3, 2020.  This was done to ensure the safety of Board employees and members of the public. On April 1, 2020, however, the National Labor Relations Board announced that it will not extend that temporary suspension of Board-conducted elections past April 3, 2020. Instead, the Board will resume conducting elections beginning on Monday, April 6, 2020. While the Board did not explain how they plan to conduct elections in the short-term, and further details and guidance is certainly forthcoming, initial communications from various NLRB Regional offices in cases being handled by firm attorneys indicate that Regions will be pressing for mail ballot elections during this emergency period. Many hearings related to previously filed petitions were indefinitely delayed last week as well. These Regions have also indicate an intent to hold any required representation case hearings remotely.

    Given the rescheduling of those hearings, combined with the backlog of petitions and the varying circumstances in each Region, it is difficult to predict when the first elections will be scheduled. As more information becomes available, Ogletree Deakins will update readers on its Traditional Labor Relations blog.

  • A11. This is hard to know. Some unions have discontinued signature gathering as a result of the social distancing and government orders, while others have used the crisis as a way to try to generate interest and/or collect employee contact information.

  • A12. The answer to this question turns on whether the conduct constitutes protected concerted activity under the NLRA. The National Labor Relations Board (NLRB) has recognized that an employee engages in protected concerted activity when he or she takes action “with or on behalf of other employees” concerning the terms and conditions of their employment. This typically involves group activity (i.e., two or more employees), a single employee seeking to incite group action, or an individual employee “bringing truly group complaints to the attention of management.” By contrast, actions that an individual takes without the actual or inferred support of other employees, and actions that relate only to an individual’s personal interests, are generally not concerted and thus not protected. Additionally, even concerted employee actions may not be protected where they relate to an issue over which the employer lacks control.

  • A13. Yes. The concept of protected concerted activity also protects employees who are not represented by a union. For example, the NLRB has held that a concerted work stoppage by employees who are not represented by a union constitutes protected concerted activity where it is based on a group concern relating to workplace health and safety issues. To be protected, employees need only have a “reasonable, good-faith belief” that working under certain conditions would not be safe. Such activity has been found to be protected even where the employer has deemed the disputed conditions to be safe, and even where the employees’ concerns may not be objectively “reasonable.”

  • A14. In Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), the NLRB recently clarified the legal standard for determining whether employee activity is protected under the NLRA. Under the NLRA, activity is considered concerted where it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Notably, an employee’s use of the word “we,” in and of itself, does not establish that the employee is expressing a group concern. However, an employee can be found to speak on behalf of other employees even if the individual is not a specifically authorized or designated spokesperson for the group.

    Concerted activity also may be found where an individual brings a “group complaint” to the attention of management. To reach such a finding, there must be evidence of “prior or contemporaneous discussion of the concern between or among members of the workforce—warranting a finding that the employee was indeed bringing to management’s attention a ‘truly group complaint,’ as opposed to a purely personal grievance.” The Board has held an individual who speaks up at a group meeting with management may be inferred to have a concerted objective based on the circumstances—for example, where the individual protests the effect of a new policy or policy change “on the work force generally or some portion of the work force,” and there has been no opportunity for employees to confer beforehand.

    Finally, concerted activity may be found where an individual employee communicates with another employee “with the object of initiating or inducing or preparing for group action” in the interest of employees. For such discussion to be protected, it must involve “talk looking toward group action,” and not “mere griping.” Employee activity that is “solely by and on behalf of the employee himself” is not protected under federal labor law.

  • A15. Not all concerted activity is protected under the NLRA. To be protected, the concerted activity must be engaged in for the purpose of “mutual aid or protection.” Some examples of activity found not to be for the mutual aid or protection of co-workers include complaints about matters that are outside of the employer’s control (such as customers’ tipping habits) or mere comments that are not aimed at changing the employer’s policies or practices.

  • A16. The NLRB has long recognized that employees engage in protected concerted activity when they take collective action to protest what they believe to be “unsafe or unhealthy working conditions.” In Tamara Foods, Inc., 258 NLRB 1307, 1308 (1981), the NLRB held that “[i]t has long been established that Section 7 of the Act protects the rights of employees to engage in protests, including work stoppages, over what the employees believe to be unsafe or unhealthy working conditions.”

  • A17. The mere fact that employees are engaged in collective action relating to workplace safety concerns can be sufficient for their activity to be found protected, so long as employees do not engage in conduct that could remove them from the protections of the NLRA—i.e., conduct that is “unlawful, violent, in breach of contract, or otherwise indefensible.” The fact that the employer believes sufficient measures have been taken to address safety concerns is not generally sufficient to remove employees’ conduct from the protections of the NLRA. Additionally, the fact that the workplace may be deemed safe by government agencies (or that employees could seek assistance from government agencies) is similarly not sufficient to render employees’ conduct unprotected.

  • A18. In Tamara Foods, Inc., the NLRB held that employees are not required to demand that their employer take any specific action to address their concerns in order for their concerted conduct relating to workplace safety issues to be found protected.

  • A19. Pursuant to Section 502 of the NLRA, a refusal to work over safety concerns is protected if the assignment is “abnormally dangerous.” Unionized employees must have a “good faith belief” supported by “ascertainable” and “objective evidence” that there is an “abnormally dangerous” working condition in order to be absolved of their contractual obligation not to strike. Refusal to work in this context is generally protected, even if there is a “no strike” clause in the relevant collective bargaining agreement.

  • A20. In Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368 (1974), the Supreme Court of the United States held that an “abnormally dangerous” working condition is one that presents “some identifiable, presently existing threat to the employees’ safety” when judged by ascertainable, objective evidence. In TNS, Inc., 329 NLRB 602 (1999), the NLRB found conditions to be abnormal in cases where “risks that are ordinarily present have been intensified”; cases where normally hazardous working conditions are exacerbated by an outside factor. For example, a natural seepage of water becomes a steady flow causing interference with footing at the base of a mine shaft; an improperly operating exhaust blower causes temperatures to rise to 110 degrees; operation of equipment that is either inappropriate or appears to be dangerously impaired; inadequately functioning respirators; or driving a truck with a broken transmission.

  • A21. To show “good faith belief,” the employees must do more than simply claim a condition is abnormally dangerous. According to the NLRB in TNS, Inc., “A purely subjective impression of danger will not suffice; nor will a speculative doubt about safety in general.” The belief must be objective and quantifiable. The NLRB requires demonstration by a preponderance of the evidence that “the employees believed in good-faith that their working conditions were abnormally dangerous; that their belief was a contributing cause of the work stoppage; that the employees’ belief is supported by ascertainable, objective evidence; and that the perceived danger posed an immediate threat of harm to employee health or safety.”

  • A22. The burden of demonstrating the application of Section 502, and that an abnormally dangerous working condition excuses an otherwise clear violation of a no-strike provision, rests with the party asserting that such a condition exists. Merely stating that the condition exists, or arguably an unsubstantiated general fear, would be insufficient to carry this burden.  Ascertainable objective evidence must be presented before a union or employees may seek the safe harbor of Section 502.

    The clear language of the statute compels the union or employees to come forward with evidence establishing the conditions at issue are abnormally dangerous and not just that hazards exist at a particular work site. Such evidence might include conditions deviating from the norm or from a reasonable level of risk; safety equipment operating improperly or not at all; significant deviation from industry safety standards; Occupational Safety and Health Act violations; or an employer’s failure to provide sufficient safety instructions. In the current climate, “ascertainable” and “objective” may include violations of or a failure to conform to federal or state directives relating to the COVID-19 pandemic. The argument could be made that an employer’s compliance with COVID-19 related directives, federal guidelines, and/or recommendations from the Centers for Disease Control and Prevention (CDC) and World Health Organization (WHO) may undermine a union’s claim that the work environment is abnormally dangerous.

  • A23. While there is a substantial degree of overlap between the two, there are also notable differences. First, a work stoppage protected under Section 7 requires the element of “concertedness,” where two or more people are acting together or one person is acting on the behalf of others (see question 3). Section 502 additionally, and expressly, covers stoppages by a single employee without the requirement of “concerted” activity. Second, under Section 502, there appears to be a higher bar for establishing the employees’ perception of possible harm—not only must there be good faith, but the harm must also be objectively demonstrable. The case law under Section 7 sets a much lower bar. In those situations, the employees’ belief does not need to be objectively reasonable. Lastly, and perhaps most significantly, the case law under Section 7 suggests that the source of the employees’ concern must relate to a condition over which the employer has control in order for the stoppage to be protected. Section 502 appears to be devoid of any such requirement. As long as the predicate condition exists, it appears immaterial as to whether or not it is within the employer’s control.

  • A24. Yes, there are at least two issues to consider. First, any analysis under either Section 7 or Section 502 involves a determination as to whether the working conditions at issue are “abnormally dangerous” or, at the very least, outside of the norm. This raises particularly difficult fact questions in the healthcare setting where, for at least some employees, exposure to all kinds of pathogens is a virtual constant working condition that has not markedly changed as a result of COVID-19. Second, unlike employees in other industries, healthcare workers are prohibited by Section 8(g) from engaging in a strike or concerted refusal to work without providing their employer with 10 days’ advance notice. This requirement is in complete tension with the provisions of Section 502 that clearly contemplate a spontaneous refusal with no notice.

    There does not appear to be any direct case law on point. On the one hand, it could be argued that the notice requirement does not apply to actions protected by Section 502 since such a requirement could largely repeal that provision. On the other hand, it could be argued that since the 8(g) notice requirement was enacted after the passage of Section 502 that the notice requirement in the healthcare setting applies even to stoppages under that section. The most prudent course of action for a healthcare employer may be to treat employees under such circumstances as immune from discharge since the opposite course could expose employers to substantial liability; and from a practical perspective is likely to be ineffective. For employees in this position, the fear of illness or death will almost certainly trump the fear of adverse employment consequences.

  • A25. An employer must refrain from taking any disciplinary action (including the issuance of attendance points and progressive discipline under its attendance policy) in response to protected concerted activity, as such action would likely be found unlawful. While the employer may not discharge striking employees, it may temporarily or permanently replace employees who engage in a protected work stoppage in order to continue its operations. One caveat: if the basis of the strike includes allegations that the employer violated the NLRA in some way (also referred to as an “unfair labor practice strike”), striking employees may only be temporarily replaced.

  • A26. If employees are engaged in a protected “safety strike” under Section 502, they cannot be permanently replaced and must be returned to work once the strike is over. The employer can, however, use temporary replacements, including supervisors, employees from other locations, or temporary employees, to complete work while the employees are on strike.    

  • A27. If an employer is found to have unlawfully disciplined or discharged an employee who engages in what is determined to be protected concerted activity, the NLRB’s remedy would likely include the following: notice posting; an order to remove any unlawful disciplinary actions from the employee’s files and an assurance that the disciplinary actions will not be used against the employee; an order to reinstate the employee if discharged; and a make-whole remedy for the affected employee (i.e., back pay if the employee was discharged and/or suspended without pay).

  • A28. Under the NLRA, there are “protected” and “unprotected” work stoppages. Employees have a right to walk out or otherwise stop work as a form of protesting the terms and conditions of their employment. As a general rule, unless there is evidence of a pattern or plan of intermittent work stoppages, a work stoppage where employees simply walk off the job and then return a short time later is protected.

  • A29. A refusal to work will be considered unprotected when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action. Therefore, a single concerted refusal to work (like a walkout) is generally treated as protected concerted activity and will generally only lose its protection if other refusals to work follow. However, to the extent that the subsequent work stoppages are attributed to different work-related complaints, the NLRB will likely be reluctant to find that the work stoppages are part of a pattern or plan and thus unprotected.

  • A30. If employees walk out, an employer has the option of allowing employees to return to work later that day or not allowing them to return to work that day. Regardless of the approach taken, it is important that the approach is consistent for all employees who participated in the walkout to avoid claims of discrimination.

    If an employee makes an “unconditional” offer to return to work the next day, then the employee has a right to return to work. This includes a situation where the employee states, “I’m ready to come back to work now,” as opposed to saying, “I will return to work when you address the safety concerns.”

  • A31. While employees can be removed from the interior of the employer’s facility, in most cases, employers will want to be cautious about forcing employees off their property. If employees choose to stand in the parking lot or near the building and protest, they should generally be allowed to do so.

  • A32. The fact that employees work at an essential business does not prohibit those workers from striking. Federal, state, and local law, including emergency orders, may curtail strikes in particular sectors of employment.

  • A33. If it is determined that an employee has a good faith belief that the work assignment is abnormally dangerous, the employee may not be disciplined, charged attendance points for the absence, discharged, or retaliated against in any way for refusing to work.

  • A34. No, an employer does not have to pay employees if they engage in a work stoppage or go on strike. Regardless of the reason for the strike, striking employees are not entitled to pay while on strike. A lawful safety strike would only protect employees from discharge, but does not entitle them to pay.

  • A35. Yes, though an employer does not have to pay employees who go on strike, it cannot withhold accrued benefits from employees based on their participation in the strike. In addition, under the Affordable Care Act, it is generally recommended that benefits continue during a limited strike in order to avoid any potential penalties. To the extent employees are still working and benefits are still available, striking employees should continue to receive healthcare coverage. However, employers can require that employees pay their portion of the premiums (including providing them with information about how to make such payments).

  • A36. No. An employer does not have to allow employees to use vacation or PTO for days spent on strike; however, employees should be able to utilize vacation or PTO if they are absent for other reasons. If, however, an employer chooses to allow employees to use vacation or PTO to deplete their banks while on strike, it can do so.

  • A37. This will likely depend on whether state law provides unemployment benefits for striking employees when there is work available. In response to the COVID-19 pandemic, to date, no states have revised their unemployment laws to address employees who go on strike due to safety concerns; in fact, some states have advised employees to go to work if available. Other states will likely review whether there is a good faith belief that the work is “unsafe” to determine eligibility for unemployment benefits. In determining whether benefits are available, unemployment agencies may review whether employees have a pre-existing condition or are at more risk for COVID-19 to justifying their safety concerns, and whether employers are following the recommended guidelines from the CDC and other agencies.

  • A38. For non-union employees, a refusal to work unless the employer agrees to a particular term or condition of employment, such as hazard pay, is generally protected. If unionized employees refuse to work unless they are given hazard pay, such action may not be protected unless it is also tied to an abnormally dangerous condition for those unionized employees. In addition, once an employer addresses the dangerous conditions, the unionized employees’ protection for their action in violation of a no-strike provision under Section 502 may be compromised. The conditions facing employers during the COVID-19 pandemic are unprecedented. While employees may demand hazard pay, absent some showing that the individual work being completed is more dangerous than dictated by circumstance (i.e., it’s generally less safe), demands for hazard pay may not be sufficient to permit a strike in violation of a no-strike provision.

  • A39. While an employee cannot not be forced back to work, under the reasoning in Gateway Coal Co., it appears that once the safety concerns are addressed, employees would no longer enjoy the safe harbor provided by Section 502. In that case, the Supreme Court of the United States upheld the district court’s decision to enforce a contractual no-strike provision obligation once the employer remediated the harm because a continued breach of no-strike obligations where no safety concern remained would cause irreparable harm to the employer. The circumstances surrounding COVID-19 are unique in that an employer may be unable to fully remediate the exposure risk. Given, however, that an abnormally dangerous condition must be proven by ascertainable and objective evidence, adherence to governmental safety directives and other health guidelines would seem to undermine the union or employees from claiming ongoing protection under Section 502.

  • A40. If employees, or the union on behalf of represented employees, make an “unconditional” offer to return to work, the employer is required to let them return. In the context of a safety strike, that might be articulated by a simple statement that the employees are willing to return without a condition precedent (“we will return to work if you get us additional PPE”) or acceptance of the employer’s COVID-19 response plan or safety precautions. [Note: A refusal to work, even if grounded in safety issues, could be considered unprotected when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action. A single, concerted refusal to work (such as a walkout) may constitute protected concerted activity, but may lose its protection if other refusals to work follow. However, to the extent that the subsequent work stoppages are attributed to different work-related complaints, the NLRB is generally reluctant to find that the work stoppages are part of a pattern or plan and thus unprotected.]

  • A41. The Supreme Court of the United States in Gateway Goal Co. specifically addressed the application of Section 502 to a case in similar circumstances involving a request for a Boys Markets injunction. The Court identified three issues for decision: (1) did the collective bargaining agreement impose a compulsory duty to submit safety disputes to arbitration; (2) if so, did that duty to arbitrate give rise to an implied no-strike obligation supporting the issuance of a Boys Markets injunction; and (3) did the circumstance satisfy the traditional equitable considerations controlling the availability of injunctive relief. Importantly, the Court ruled that absent an express indication in the parties’ contract, work stoppages based on safety-related concerns were not exempt from the union’s no-strike pledge. In addition, the Court held that Section 502 does not give a union an unrestricted ability to escape from its no-strike obligations.

 

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