Employers and employees remain legitimately concerned about health and safety as Covid-19 variants continue to wreak havoc on workplaces around the country.
Employers trying to keep their businesses operating are challenged by the difficult task of complying with ever-changing health and safety laws, regulations, and guidance.
Employees often believe their employers are not doing enough to keep them safe, and share their workplace safety concerns with their co-workers, file internal or external complaints, and may even refuse to work or seek the support of a union. Employers that take adverse action against employees who engage in such conduct risk violating various laws.
In addition to complying with applicable safety and health protocols, employers must be mindful of the laws that both provide protections to employees who engage in protected activity and may limit employer discretion in making decisions about employees’ health and safety.
Further, to promote positive employee relations, employers should communicate all that they are doing to keep employees safe and listen and appropriately respond when employees voice their concerns.
Employee Safety-Related Protests
Employers are likely aware of employees’ right to file complaints with the Occupational Health and Safety Administration, and the inspections, citations, and fines that often follow. No matter how they view such complaints, employers cannot legally take any adverse action against employees for doing so.
Employers should also be aware that employees are able to take health and safety matters into their own hands. Under the Occupational Safety and Health Act, the National Labor Relations Act (NLRA), and its amendment, the Labor Management Relations Act (LMRA), employees may have the right to refuse to work if, among other requirements, they have an objectively legitimate reason to believe that their workplace is “abnormally dangerous” and/or presents an “imminent danger” of death or serious harm. Under these federal laws, even one employee acting alone may be protected from adverse action by the employer.
The NLRA and LMRA apply to all non-supervisory employees, whether or not they are represented by a union. The NLRA prohibits adverse action against employees for engaging in “protected concerted activity” for their mutual aid or protection. Such activity may be two or more employees banding together regarding issues relating to their terms and conditions of employment, or one employee speaking on behalf of others.
In addition to refusals to work due to unsafe/unhealthy conditions, such activity may include demands for additional personal protective equipment, disclosure of the existence of positive Covid-19 cases in the workplace, and hazard pay. Employers must not take adverse action against employees engaging in such conduct.
Union Activity and Special Issues in Unionized Workplaces
Although various levels of government provided Covid-19-related health and safety protections and economic assistance, job security and safety concerns caused by the pandemic may lead employees to seek union representation when they otherwise would not have been inclined to do so.
Unbeknownst to their employers, employees may be being approached by union organizers virtually and through social media. Employees are likely more receptive to virtually talking about union organizing in the privacy and comfort of their own homes, and without union organizers coming to their homes, which was off-putting to some.
Employers need to be mindful, not only of workplace health and safety issues, but also of whether their wages, benefits, and other terms and conditions of employment are competitive, if they wish to make their workplace less susceptible to union organizing.
When employees are already represented by a union, employers may be required to respond to the union’s requests for information relating to health and safety of the workplace. This may include employers having to allow non-employee union representatives and safety experts to access and inspect the workplace.
Moreover, absent a waiver, employers may have to bargain with the union regarding safety-related decisions (such as mandating Covid-19 vaccinations), and the effects of those decisions, even when those decisions are mandated by applicable law.
When negotiations for a new collective bargaining agreement do not go well, and employees choose to strike, the issues become more complex when health and safety issues are involved. Under the LMRA, safety concerns need only be a contributing cause, and not the sole cause, of a work stoppage.
Work stoppages under the LMRA are not considered traditional strikes, and therefore will not violate a no-strike clause in a collective bargaining agreement. Employers may not be able to enjoin such work stoppages or permanently replace employees as they could in the event of a strike for economic reasons.
Given the challenges presented by the pandemic, entering any union or employee discussions with an understanding of this legal context and desired goals, as well as an open mind, will benefit all involved.
This column does not necessarily reflect the opinion of The Bureau of National Affairs,Inc. or its owners.
Francine Esposito is a Day Pitney LLP Employment and Labor partner in Parsippany, N.J. She advises employers on labor law matters and represents employers at labor arbitrations and before various administrative agencies, including the NLRB, OSHA, and EEOC.