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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