When Does Federal Labor Law Protect An Employee’s Refusal to Work Because of Fear of COVID-19 Exposure?
As employers begin to resume or work on plans to resume business operations in the face of the COVID-19 outbreak, a critical issue will be the extent to which employees have a legal right to refuse to report for work or to perform assigned work tasks, out of a claimed fear of COVID-19 exposure. This question is impacted by several federal and state statutes, as well as legal principles protecting employees from discipline or discharge in violation of “public policy.” It is important for all employers, whether their work forces are unionized, non-unionized or a combination of both, to be aware of their obligations under the federal National Labor Relations Act, and a companion statute, Section 502 of the Labor Management Relations Act. Those federal statutes may protect employee work stoppages or refusals to work, whether or not the employer’s workplace, in fact, places employees in a real and imminent danger of COVID-19 exposure. Moreover, employee legal protection is provided under the NLRA irrespective of whether workers and industries are deemed “essential” under current state Stay Home orders.
1. Refusals to Work By Employees Not Represented by a Union
The National Labor Relations Act (“NLRA”) is generally perceived as governing union organizing, collective bargaining, and labor disputes such as strikes or picketing. But the Act also protects non-union employees engaged in “concerted activities for the purpose of … mutual aid and protection.” This can include work stoppages or refusals to work engaged in by non-union employees because of concerns about workplace safety or alleged unsafe working conditions. The coverage parameters [under the NLRA] for non-union employees is extremely broad, extending to virtually all non-supervisory and non-managerial employees in the United States. Not only are hourly production and maintenance employees protected by the statute, but also non-supervisory professional employees, technical employees, clerical employees, and data processing employees. Thus, for example, a refusal to report to work by a company’s engineering staff because of fears of COVID-19 exposure would likely fall within the ambit of protection of the NLRA.
In general, the NLRA does not protect an employee acting solely out of individual concerns. Rather, the activities of the employee must be “concerted” under the statute. This has been defined by the National Labor Relations Board (the federal agency enforcing the NLRA) as “engaged with or on the authority of other employees and not solely by and on behalf of the employee himself.” Meyers Industries, 268 NLRB 493, 496 (1984). An employee engages in concerted activity when he/she acts in concert with co-workers or acts as a spokesperson or representative of other workers in relating work-related concerns to the employer.
Accordingly, with regard to potential COVID-19 exposure, an employee refusing to work because “I am afraid I will be exposed” is not engaging in concerted activity protected by the NLRA. In contrast, if multiple non-union employees walk off the job because they believe the employer has not provided sufficient personal protective equipment to prevent potential COVID-19 exposure, this is, in essence, a protected “strike” under the NLRA, precluding the employer from disciplining or discharging the employees.
To be protected under the NLRA, a concerted work stoppage or refusal to work because of concerns about alleged unsafe working conditions is not contingent upon objective or scientific proof that the work is in fact being “unsafe.” Nor must employees establish that the work or working conditions violates any federal or state safety standards. Rather, the NLRB has ruled that the employees need only have an “honest belief” of unsafe working conditions; a belief that does not necessarily have to be reasonable under the circumstances. Bechtel Power Corp, 277 NLRB 882 (1985). For example, a non-union employee work stoppage because the employer has not provided employees medical-grade N-95 masks would likely still be protected even though the employer has provided employees with cloth “bandana-style” masks, which might technically comply with the requirements of Governor Whitmer’s current Executive Orders. This is because, under the NLRA, employees have a protected right to “strike” for whatever safety equipment they might choose to demand, similar to the rights of union-represented employees in collective bargaining.
An employer faced with a protected non-union employee work stoppage cannot lawfully discipline or discharge employees but has the right to “replace” them, at least temporarily. Depending on the facts, an employer may also be permitted to replace striking employees on a “permanent” basis. An employee who is “permanently replaced” by another worker who is willing to work has at best a right to be placed on a preferential hiring list if no vacancies are available when they seek to return to active employment. This option may not be available to an employer who commits “unfair labor practices” in connection with the employee work stoppage, such as unlawfully threatening discharge to employees who have participated in the protected “strike”.
2. Refusal to Work by Union-Represented Employees
In periods where union-represented employees are not subject to a collective bargaining agreement (i.e., where no labor contract is in effect and an agreement is being negotiated), union-represented employees have the same NLRA rights as those discussed above. However, most collective bargaining agreements contain a “no-strike” clause in which the union agrees that there will be no strikes or work stoppages during the term of the contract. The no-strike clause is viewed by the NLRB as a waiver of the employees’ right to strike, and as a result, the rights of employees to engage in safety-related refusals to work can be more limited.
As a threshold matter, where a collective bargaining agreement has provisions stating or implying that the employer will provide a safe workplace, a bargaining unit employee’s refusal to perform alleged unsafe work can be viewed as protected under the NLRA. To be protected, the employee must have a “reasonable and honest” belief that he/she is being required to perform unsafe work in violation of the labor contract. NLRB v City Disposal Systems, Inc., 465 U.S. 822 (1984). Although the action may only involve a single employee, the requirement of “concerted” action is deemed met because he/she is viewed as asserting the right of all bargaining unit employees under the contract. This standard of “reasonableness” has also been adopted by many labor arbitrators in determining whether an employee’s refusal to perform work out of alleged safety concerns is consistent with a “just cause” standard.
Section 502 of the Labor Management Relations Act excludes from the definition of a strike a “quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment.” Employees ceasing work because of “abnormally dangerous conditions” are accordingly not considered to be engaged in a strike in violation of a no-strike clause, and cannot be disciplined or permanently replaced. A mere subjective belief that working conditions are abnormally dangerous will not, however, protect employees from discipline under this statutory provision. Rather, employees or unions seeking to justify a work stoppage or refusal to work must present “ascertainable objective evidence supporting [their] conclusion that an abnormally dangerous condition for work exists”. Gateway Coal Co v Mine Workers, 414 U.S. 368, 387 (1974).
The existence of a no-strike clause in a collective bargaining agreement accordingly provides employers more protection against employee refusals to work out of concerns of COVID-19 exposure than the employer might have with regard to concerted action by non-union employees. Where, for example, a unionized employer can show that it is complying with all federal and state recommendations or regulations to safely inhibit COVID-19 exposure in the workplace, that employer will likely be able to lawfully discipline or discharge bargaining unit members who refuse to report for work or refuse to perform assigned work tasks.
Employers must carefully consider employee protections under the National Labor Relations Act whenever employees refuse to report for work or refuse to perform work tasks out of a claimed fear of COVID-19 exposure, whether the employees are represented by a union or not. Experienced labor counsel should be consulted in order to avoid unfair labor charges which could result in administrative prosecutions and substantial judgments for back pay and lost benefits. Please feel free to contact the members of Butzel Long’s Labor and Employment Team whenever your business is faced with these issues.