Labor Issues Involving COVID-19 Policies and Procedures
By William Jarvis - Tuesday, November 17, 2020
The purpose of the Illinois Public Labor Relations Act is to regulate labor relations between public employers and employees including the negotiations of the wages, hours, and other terms and conditions of employment. Common issues related to the Act include but are not limited to employees engaging in protected concerted activities and the potential duty to bargain with unions concerning the impact of changes in the Employer’s policies and procedures. The recent COVID-19 outbreak presents a virtually unprecedented situation for employers. The appropriate responses to these issues depend on a variety of different factors, including the timing, specific employer, the particular industry involved, the employer’s collective bargaining agreement (“CBA”), and the status of guidance and orders from federal, state and local governments and agencies concerning COVID-19 (with guidance and recommendations not necessarily having the same weight as orders and laws).
The Illinois Public Labor Relations Act (“Act”) imposes on employers the duty to bargain in good faith with unions over mandatory subjects of bargaining such as wages, hours, and other terms and conditions of employment (mandatory bargaining subjects). For example, if employers implement COVID-19 programs/policies concerning work assignments, procedures for travel and quarantining as a result of exposure or potential exposure, and procedures for how to pay employees who are furloughed or otherwise quarantined, they may implicate mandatory bargaining subjects. Generally speaking, employers who make material changes to mandatory bargaining subjects without bargaining with a union run the risk of unfair labor practice charges that potentially could apply in emergency situations such as the COVID-19 pandemic. In an unprecedented emergency like the COVID-19, union bargaining obligations may be relaxed based on the terms of the collective bargaining agreement.
Many collective bargaining agreements contain provisions that allow for employer flexibility in determining management rights, layoffs, subcontracting, closures, relocations, work assignments, scheduling, leaves of absences, paid time off, sick leave, and health and safety, among others. These types of collective bargaining provisions may give employers the right to proceed unilaterally without bargaining with the union under the Act.
In light of the increasing level of government intervention related to COVID-19, it is also possible that certain government directives may override collective bargaining agreements. By way of one example, Congress passed HR 6201, (Family’s First Coronavirus Response Act) requiring additional paid sick and family leave for certain employees with fewer than 500 employees. (up to eighty hours of paid COVID leave). State and local governments have also issued orders that may require the temporary closing or cessation of work at some operations. These kinds of orders potentially may leave employers and unions with no choice but to make alterations to the workplace not contemplated in any CBA. However, even if these orders do leave employers with no choice but to make unilateral changes, employers should consider whether they have an obligation to bargain over the “effects” of the order and discretionary aspects of implementation.
Recent Guidance from the Equal Opportunity Employment Commission
It has been recently established that Employers can require an employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances. Employers can also ask employees entering the workplace whether they are suffering from symptoms consistent with COVID. They can perform temperature checks as well. While employers can single out an employee for testing or questioning, there should be a good reason for doing so (i.e. the employee looks sick, has a family member with COVID, etc.). With that said, employers should not specifically ask an employee whether a family member has COVID, as that would be a violation of the Genetic Information Nondiscrimination Act. They can get around this though by asking whether an employee has been in contact with anyone who has COVID or symptoms consistent with the disease.
The ADA requires employers to keep all medical information about employees confidential and in a separate file, even if that information is not about a disability. If an employee has COVID symptoms, that information must be kept confidential. With that said, this information can be reported to the appropriate people in the company so that they can take measures to keep the workplace safe. Also, if an employee knows that a co-worker is experiencing COVID symptoms, that employee can report this information to a supervisor.