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Managing COVID-19 in a Union Workforce in the US

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As the 2019 Novel Coronavirus (COVID-19) spreads into the broader economy, human resource professionals are finding that grappling with the consequences are more complicated in union-represented workforces. In a union workforce, the employer must determine what it has already agreed it will do, the extent of its freedom to address the scenarios created by COVID-19, and the legal framework within which it must act. Below we offer several considerations for employers to adopt.

First, examine the collective bargaining agreement. This will allow you to determine the extent of the company’s freedom to act independently and expeditiously. The place to start is to determine management’s right to schedule work, to idle the plant, to send workers home and to lay-off employees. Determine the restrictions, if any, in these rights, such as call-in pay or weekly guarantees.

  • Examine the lay-off and recall procedures in the event some, but not all, employees will be sent home. Determine when the company must follow these methods and when the company has the right to pick and choose affected employees.
  • Examine the temporary vacancy provisions to determine when and how the company must fill short term vacancies.
  • Review leave of absence provisions including Family and Medical Leave, paid sick leave, and personal absences to determine eligibility criteria and scheduling limitations.
  • Review paid time-off entitlements eligibility and scheduling limitations.
  • Review the short-term disability welfare plan to determine eligibility, duration, and rate of pay.
  • Review policies or contract provisions regarding disability, accommodations, fitness for duty examinations, and return to work policies.
  • Review the work rules (discipline policy) and the health and safety policy to determine employees obligations to report medical diagnosis which pose a threat to coworkers.
  • If the workplace has a mixed workforce, review the project labor agreement or subcontracting/services agreement to determine which entity controls the operation of the worksite.

Second, consider discussions with responsible union officials. While the company may be free to act unilaterally under the NLRB’s recent decision in MV Transport, it should prepare a written policy to address:

  • An employee exposed to COVID-19
  • An employee who is symptomatic while at work
  • An employee who contracts COVID-19
  • Co-workers of employees in the above categories
  • Return-to-work criteria and process
  • The shutdown of operation by public health officials
  • The shutdown of operations by management
  • The shutdown of operation due to lack of materials or supplies
  • The recall, reinstatement or restarting of operations in phases if desired

Even if bargaining with the employees’ representative is not required, employers may find it beneficial to review its COVID-19 response policy with responsible union officials before implementing it. Employers should avoid negotiating the policy and should make clear to the union that the review is not bargaining.

Finally, the company should review the legal requirements that govern the workplace. Many cities have enacted paid leave ordinances in the absence of state laws. Local district judges may have addressed fitness for duty and return to work examinations when employees have communicable diseases. And, while it is still over the horizon, the company should consider how it will address the administration of vaccinations should one be developed.

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Author

Douglas Darch is an experienced and creative trial attorney. He has participated in over 150 hearings before the National Labor Relations Board (NLRB), labor arbitrators, federal and state courts, and administrative agencies, including landmark decisions under Title VII, ERISA, FMLA, and the National Labor Relations Act (NLRA). In 2017, he was selected as one of the Top 10 Labor Management Attorneys in Illinois by Leading Lawyer. In addition to his trial work, he has extensive experience in union/labor relations, corporate restructurings, multiemployer pension plans, international framework agreements, mergers, acquisitions, the integration of work forces, melding European-style labor relations to meet US legal standards, and personnel policy development. In 2015 he was recognized by Who's Who Legal: Pensions & Benefits as a "top name" in Chicago for benefit plan modification and ERISA litigation. He is a member of the Firm’s Global Automotive Steering Committee and the former chair of Employment Compensation Labor Practice Group for the Chicago office. Before law school, Mr. Darch served as an Officer in the US Navy.

Author

William (Bill) Dugan is a partner in Baker McKenzie’s Employment and Compensation Practice Group, residing in Chicago and New York, chair of the US Disputes Employment Group, co-chair of the North American Employment Disputes Group, and a member of the Steering Committee for the North American Employment and Compensation Practice. Bill has been recognized as a leader in labor and employment law by Chambers, he has been repeatedly recognized for his superior litigation defense in Super Lawyers, and Legal 500 has stated that Bill is a “master in the art of defending corporations in litigation.” Bill represents management in complex litigation in federal and state courts and other tribunals throughout the United States, including trade secret and restrictive covenant matters, class and collective actions, and labor arbitrations. Bill also counsels employers on a wide range of Labor and Employment issues.

Author

Rick Hammett represents employers in labor and litigation matters throughout the United States, including administrative proceedings before the EEOC, NLRB, DOL, OFCCP and state agencies. He has represented employers in jury and bench trials in US state and federal courts, and has argued before both federal and state courts of appeals. Mr. Hammett is the former managing partner of the Firm’s North America region and served as a member of the Firm's Policy Committee. He was also the chairman of the Firm’s North America Employment and Compensation practice, as well as member of the Global Employment and Compensation Steering Committee. Mr. Hammett is certified in Labor and Employment Law by the Texas Board of Legal Specialization. He is recommended by Legal 500 and has been selected as a BTI Client Service All-Star, a Texas Super Lawyer in Texas Monthly and Law & Politics magazine, and named one of Houston’s top lawyers by H Texas magazine. He is also cited in Who's Who Legal: Pensions & Benefits 2015.

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