Tracking COVID-19’s Employment Law Impact: The Role Of Traditional Labor

What traditional labor issues are implicated in the COVID-19 workplace?

The National Labor Relations Act (NLRA), which is the basis for traditional labor rights, protects the right of workers (with some exceptions, most notably, supervisory employees) to engage in concerted activity to improve the terms and conditions of their employment. The rights afforded  under the NLRA apply both to unionized workers and workers who are not represented by a union. In the COVID-19 world, employee concerted activity has focused on workplace safety concerns, of course, but also the bread-and-butter issues arising from the economic fallout of the pandemic. 

What kinds of activity are protected? In recent years, the National Labor Relations Board (NLRB) has endeavored to apply an aging statute to contemporary workplace issues (and it has done so in wildly divergent ways, depending on the political makeup of the Board during any given presidential administration). 

Or, asked through a COVID-19 lens: Can workers refuse to work without personal protective equipment? Can they stage a walkout if their worksites are not routinely sanitized? Can they refuse to work with a coworker who violates social distancing protocol? For unionized employees, who often work under collective bargaining agreements containing “no strike” clauses, the answer becomes thornier; for unionized hospital workers, even more so. 

Can employees gang up on non-mask-wearing coworkers on an unofficial employee Facebook page? Can an employee email the entire distribution list to invite them to a webinar on “Your COVID safety rights” by a union seeking a foothold at the company? All of these questions implicate traditional labor issues, and none of them are as clear-cut as they first appear.

What does the National Labor Relations Act say about these issues?

Employers have to consider the NLRA when responding to such employee conduct. The statute (and interpretations of the statute under Board common law) guides whether an employer may discipline or discharge workers for walking off the job, or replace workers who go out on strike. 

Most relevant currently, in the unionized workplace, is Section 502 of the Act, which addresses when employees working under a no-strike clause may nonetheless walk off the job over safety concerns. The short answer: “Nothing in this Act shall be construed … to make the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work … be deemed a strike under this Act.” 

Of course, as applied, the real answer is more nuanced and fact-specific. Can employees “reasonably believe” their workplace is “abnormally dangerous” if the employer is in compliance with OSHA and industry-specific coronavirus guidelines—even if those guidelines do not have the force of law? 

The NLRA also imposes a bargaining duty on employers whose workers are represented by a union. This obligation presents its own set of challenges during a pandemic, when an employer must take prompt and nimble action to protect both workers and the business. Under NLRA, Section 8(a)(5), unionized employers cannot make “unilateral changes” to employees’ terms and conditions of employment, even during the interim period between contract negotiations. That means an employer has to get the union on board if, for example, it wishes to do COVID testing, or stagger worker start times to prevent unsafe overcrowding in the employee locker room.

What are the key bargaining subjects to emerge from COVID-19?

Contract negotiations will certainly be impacted by COVID-19 and its economic repercussions. Under the current crisis, important issues have arisen affecting employees’ “terms and conditions” of employment. For example:

Health and safety: Personal protection equipment, hygiene and infection control measures (including shields); testing protocols and privacy protections; social distancing; staggered shifts and breaks; and the changing role of the union safety committee.

Wage and hour: Unions are likely to seek ongoing hazard pay as the COVID risk persists, as well as return-to-work bonuses. Parties may also negotiate whether time spent waiting for temperature screening, or donning and doffing PPE, will be compensable.

Return to work. Recall procedures, opportunities for continued telecommuting, and new rules and expectations for the post-COVID-19 workplace generally will need to be hammered out at the bargaining table.

Benefits. While the federal CARES Act has provided some additional benefits coverage, unions will seek to expand on these basic provisions. During the lockdown, unions have successfully negotiated with employers to maintain health insurance and other benefits and ensure that employers continue paying for health care premiums during furloughs and layoffs. 

Severance packages will likely be on the table, in anticipation of a possible resurgence in infections requiring another shutdown. Unions may also look to add death benefits; the Transport Workers Union successfully obtained benefits for New York Metropolitan Transportation Authority workers who die after being infected by the coronavirus. 

Employee leave. Similarly, while the federal government has extended leave options for employees during the coronavirus pandemic, the crisis has demonstrated how anemic employee leave benefits are. Unpaid job-protected leave provides some measure of solace, but unions will bargain over heightened paid leave benefits to protect workers in the event a family member becomes ill and extended medical leave benefits are needed.

How has the NLRB responded to the pandemic?

Remote work. Aside from a few temporary closures, the NLRB has kept its regional offices operating throughout the pandemic, mostly with a skeleton crew of agency staff on-site and the bulk of employees working from home. It has continued to handle unfair labor practice charges and investigations and to issue unfair labor practice complaints. Although in-person hearings were postponed, some matters were handled by phone when feasible, and the Board just announced it will resume hearings, through remote videoconferencing, on June 1. 

Delayed implementation of new rules. At the height of the pandemic, the NLRB on April 1 issued its anticipated final rule addressing the representational status of unions in the construction industry and other piecemeal changes to how unions attain or keep their representational status under the federal labor law. Later, perhaps more fully cognizant of the challenges employers were already facing from the unprecedented public health crisis, the NLRB put off the effective date of this “election protection” regulation from June 1 to July 31. The Board also delayed implementation of its more sweeping rule pulling back Obama-era changes to the timing and conduct of Board-run representation elections. The new procedures, initially slated to take effect April 16, were delayed to May 31. 

Temporary suspension of elections. As the scope of the pandemic became clear, the NLRB on March 19 temporarily suspended representation elections through April 3—even mail-ballot elections. At the time, several regional and field offices had been closed and other locations were operating with limited staff, leaving the Board doubtful of its bandwidth to effectively conduct elections. With elections now officially resumed, regional directors have discretion to decide on a case-by-case basis whether an election can be conducted, and how, taking into account “the extraordinary circumstances of the current pandemic, to include safety, staffing, and federal, state, and local laws and guidance,” the Board said. 

Already, regional directors have had to contend with several disputes over whether to make concessions to the coronavirus by delaying a scheduled union election or holding elections by mail ballot rather than at the worksite. Employers have been arguing, first, that the public health crisis requires the suspension of representation elections and, somewhat paradoxically, that if an election must be held, it should be conducted in person. Neither argument has prevailed. 

Mail-in ballots. In one case, a regional official refused to delay an election at an acute-care hospital despite the employer’s contention that the extraordinary circumstance justified a stay. The NLRB upheld the regional director’s decision, even while acknowledging that the pandemic raises significant challenges for the employees, the union, and the hospital as it girds itself for an influx of COVID-19 patients. Nonetheless, the Board cited its obligation to maintain operations to the extent it is safe and feasible to do so. 

Also, the NLRB and the agency’s regional officials are increasingly inclined to order mail-in balloting over employer objections in light of the pandemic, including in one high-profile organizing effort among Instacart in-store shoppers. In one case that already made its way to the Board, the employer’s request for review was denied, reflecting both the Board members’ deference to the agency’s regional directors and its recognition of the pandemic’s ongoing health risks.

More recently, in recognition of pandemic-induced worksite shutdowns, the Board temporarily revised its unfair labor practice remedy to require that employers that violate the NLRA are to post a remedial notice of the Board’s findings at the affected worksite within 14 days of the “substantial complement” of the employer’s workforce returning to the facility. (This temporary change does not apply to “essential” worksites that have remained open through the pandemic.) Also of note, the Board issued a published ruling in which it held that the ongoing COVID-19 pandemic amounts to “compelling circumstances” sufficient to warrant holding a pre-election hearing remotely.

How have labor unions responded to the pandemic?

Cooperate. The overarching dynamic has been cooperation, perhaps in keeping with the “we’re all in this together” mindset that marked the early days of the pandemic. As the coronavirus shutdown racked up staggering job losses, unions were acutely aware that their employers were vulnerable and that it was in members’ best interests to keep them up and running. At many unionized worksites, management and union safety committees collaborated as to worker safety. For example, Albertsons Companies and the United Food and Commercial Workers International Union (UFCW) launched a joint effort to seek a temporary designation of “extended first responders” or “emergency personnel” for the supermarket chain’s employees, in an effort to secure COVID testing priority, as well as PPE and other protections.

Advocate. Unions have taken a more combative posture when they believed it necessary, however. For example, while Association of Flight Attendants-CWA International President Sara Nelson advocated fiercely for financial support for the COVID-decimated airline industry, she also lobbied for labor-friendly conditions on that support in the federal CARES Act. The UFCW pushed back against national grocery and retail chains, both union and nonunion, that started to scale back “emergency” or hazard pay for front-line workers as the pandemic wore on. (As of mid-May, the union noted, 65 grocery store workers had died from COVID-19.) 

Regulate. Unions also have aimed their ire at regulatory agencies. For example, UFCW, which represents a sizeable share of workers in the hard-hit meatpacking and meat processing industries, called for the U.S. Department of Agriculture to compel employers to provide testing, PPE, and other protections, to mandate social distancing in the plants, suspend USDA waivers that allow companies to speed up processing lines, and isolate workers who are symptomatic or test positive, allowing them to quarantine at home, with pay. 

Litigate. The AFL-CIO, in conjunction with several unions, sued the Department of Labor, asking a federal circuit court to force the Occupational and Safety Administration to issue an emergency temporary standard on respiratory diseases to guard against coronavirus. The agency has been reluctant to do so; its approach has been to offer industry-by-industry safety guidance that imposes no new requirements in lieu of enforceable mandates, insistent that existing enforceable standards cover COVID-related risks. The unions filed suit only after direct appeals to Labor Secretary Eugene Scalia proved fruitless.

“Alt labor” group Fight for $15 also has turned to litigation, joining five McDonald’s employees in Illinois in a “public nuisance” action contending that the fast-food chain is not sufficiently protecting its workers. The group, which is affiliated with the UFCW, also has organized walkouts of McDonald’s workers at locations across the country. 

Concerted action. Service Employees International Union members employed at skilled nursing facilities in Illinois secured hazard pay, better PPE, more paid sick days for COVID testing, illness, or quarantine, and other concessions after threatening to walk off the job, leveraging their critical-worker status during the public health crisis.

Public sector. In the public sector, the American Federation of Government Employees (AFGE) has sued the U.S. government in an effort to procure hazard pay for federal employees who work in close proximity to “virulent biologicals” (in this case, the coronavirus), as federal law requires, according to the union. The AFGE also issued a list of detailed preconditions it says must be met before the government reopens, including universal COVID testing, adequate protective supplies to minimize the spread of infection, and leave time for symptomatic employees. 

In addition, the union, which represents 6,500 federal meat inspectors, decried President Trump’s executive order mandating the reopening of meatpacking plants. (Well over 100 inspectors have contracted the virus, and by April’s end, several inspectors already had died.)

How will the pandemic impact union organizing going forward?

“Sickouts.” The most high-profile work stoppages during the pandemic thus far have been unaffiliated with organized labor. Nonunion workers staged “sickouts” at Target, Amazon, Instacart, and other large employers, pressing for workplace safety protections as well as some measure of security from the economic turmoil that the pandemic has caused. According to the National Council for Occupational Safety and Health, by mid-May, the United States had seen more than 200 employee walkouts arising from COVID-19-related safety concerns. These incidents point to an organic groundswell of labor activism arising from the pandemic.

Treatment of essential workers. Essential workers have been on the front line since the early days of the pandemic. Healthcare professionals, police and firefighters, and other first responders—heavily unionized workers—have garnered much admiration during the crisis. Retail and service employees, food production workers, delivery drivers, and similar professions are now counted among the “essential” as well and have gained newfound public appreciation. Those laboring in these critical yet low-wage jobs are prime targets for union organizing. 

Economic insecurity. The coronavirus has cast a cold light on the economic insecurities plaguing much of the workforce. Yet many unionized workers received hazard pay, additional paid sick time, continued health coverage through furloughs, and stronger safety protections during the crisis. 

Greater appeal? To the extent organized labor has shown its value in protecting workers and their jobs, union representation will have strong appeal now. Coupled with a strong pro-worker sentiment and inklings of a latent labor activism, this may well be an opportune moment for organized labor. However, if the favorable union climate don’t translate into actual bargaining power, that moment could be fleeting.

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Lisa Milam is a Senior Editor/Analyst for Labor & Employment Law Daily. She has been a member of the labor and employment team at Wolters Kluwer Legal & Regulatory U.S. for more than 15 years.

Ronald Miller is a senior employment law analyst for Labor & Employment Law Daily. He has more than 35 years of experience covering employment law for Wolters Kluwer Legal and Regulatory U.S. and has written and edited publications on a variety of employment law topics.