BakerHostetler’s COVID-19 Labor and Employment Issues Task Force issued a set of FAQs on March 18, 2020 and another on March 30, 2020 regarding general legal issues concerning the COVID-19 pandemic. Below are new FAQs that reflect the guidance recently sought by employers related to this topic.
Q: Can my company restrict the use of paid time off (PTO) or vacation time for employees on furlough?
A: State or local laws may require you to either pay out accrued PTO to furloughed employees or allow employees to use such PTO while on furlough. In the absence of such requirements, if your policies give the company authority to approve or deny an employee’s request for PTO, the company retains the right to do so during the furlough period. This means that a company could restrict the use of PTO altogether, so long as employees retain the right to use any paid sick leave that may be provided under state or local laws. In fact, some employers may be able to consider suspending accrual of additional PTO on a going-forward basis during a furlough, again once paid sick leave obligations are taken into account. Check your state laws for more specifics, particularly if your company provides PTO as an “earned” employee benefit.
Q: Is an employee entitled to use local or state required paid sick leave (not Families First Coronavirus Response Act (FFCRA) paid sick leave) on days or times he or she is not scheduled to work, such as days they are on furlough or a reduced schedule?
A: This will depend on the specific guidance issued by state and local officials. Some local public officials have provided specific guidance making it clear that employees can use state or local paid sick leave only for days and times they are otherwise scheduled to work, unless the reason they cannot work is a state-recommended or mandated quarantine (for example, San Francisco has provided such guidance). Many jurisdictions have not explicitly answered this question yet, but it is a question that employers are increasingly asking as they furlough employees or reduce their work hours.
Q: Is an employee entitled to FFCRA paid leave if his or her child care provider is a family relative who is unavailable due to COVID-19? Or does the FFCRA require paid leave only where a licensed child care provider is closed or unavailable?
The regulations adopted by the Department of Labor (DOL) under the FFCRA provide that an employee is entitled to paid leave even if his or her child care provider is a family relative who is not compensated for the child care services provided. The regulations further note that the place of care does not have to be a facility that is operated for child care purposes. In short, the DOL is taking a very broad view of “child care provider” for the purposes of determining when an employee is entitled to paid leave.
Q: My employees are all teleworking. Can I “post” the notice required from the FFCRA by emailing the notice to the workforce?
A: The DOL has issued guidance stating that an employer can send the FFCRA’s required notice to employees by email or by posting it on an internal or external website that employees are able to access. The DOL’s guidance did not specify, however, whether electronic distribution of the notice will satisfy the employer’s FFCRA posting obligation in total. In addition, the statute explicitly requires the FFCRA notice to be posted “in conspicuous places on the premises of the employer where notices to employees are customarily posted.” (Emphasis added.) Accordingly, even if the notice is distributed electronically, the safest option will be to post the notice physically as well, with other legally required notices to employees.
Q: A union represents some of my employees. We have pretty good relations normally, but things have gotten a bit contentious with the pandemic and the economic climate that has resulted. The union has asked that Human Resources turn over a list of all employees who have (1) been diagnosed with the COVID-19 virus and/or (2) been quarantined, as well as the reason for quarantine. This is confidential information. I don’t have to give it to the union, do I?
A: Maybe. The information is indeed confidential, and you are within your rights to require that the union explain the reason for its request. If the reason given is related to the union’s role as bargaining agent, that isn’t the end of the story. If you’re a healthcare provider or health insurance company, there may be Health Insurance Portability and Accountability Act restrictions on you releasing the information. State laws and/or the Americans with Disabilities Act could also pose an issue. The best practice here, assuming the information is relevant to begin with, may be to request a written release from the employees whose information would be released. If that isn’t forthcoming, this could be the basis of an objection to the request and refusal to hand over the information. The union, especially in light of the way it might be perceived by your employees, may relent and agree to accept information that doesn’t relate to specific individuals.
Q: At the time of the outbreak of the COVID-19 virus, my business was in collective bargaining negotiations with a union for a first contract. The union is insisting that bargaining continue. Is the company required to do so in light of this pandemic?
A: Generally, either party may demand in-person negotiations and it is likely an unfair labor practice to refuse to hold them in person. However, in light of the rash of recent government orders restricting travel and the gathering of even small groups of people, as well as guidance from health authorities, like the Centers for Disease Control and Prevention, in-person bargaining sessions simply are not an option. If the union pressures the employer to agree to attend “virtual” negotiations, there may be some room for resistance based on this long-standing National Labor Relations Board precedent. However, if an employer determines the continuation of bargaining is in its interests, it may explore bargaining “virtually” via teleconference or videoconference and exchange proposals via secure email. To facilitate such negotiations, the Federal Mediation and Conciliation Service is offering a variety of virtual bargaining platforms.
Q: Has the NLRB provided any guidance on an employer’s duty to bargain in emergency situations?
A: Yes. On March 27, 2020, the NLRB’s General Counsel, Peter Robb, released General Counsel Memorandum 20-04 (“GC 20-04”) summarizing existing case law on the duty to bargain during emergency situations. In GC 20-04, General Counsel Robb acknowledges that COVID-19 is an “unprecedented situation” and is issuing the memo to provide “useful information” for parties to consider.
As the memo explains, the duty to bargain is excused when the employer can show that economic exigencies compelled immediate action. The exception is applied narrowly and limited to extraordinary and unforeseen events that have a major economic effect requiring immediate action. For example, in Port Printing & Specialties, 351 NLRB 1269 (2007), the NLRB found that the exigent circumstances surrounding an approaching hurricane and mandatory city evacuation privileged the employer’s unilateral action of laying off employees without bargaining with the union.
However, the fact that unilateral action was privileged at the time does not absolve the employer from bargaining over the effects of the change. Indeed, after finding that the layoffs in Port Printing discussed above were lawful, the NLRB went on to find that the employer unlawfully failed to bargain over the effects of the layoff and its use of supervisors to perform bargaining unit work after the exigency passed.
As the General Counsel recognized, COVID-19 poses an unprecedent set of circumstances. Employers considering unilateral action in response to COVID-19 issues should carefully evaluate whether the action falls into the type of extraordinary and unforeseen events that require prompt action. Whether an employer meets the emergency exception will depend on facts specific to that employer and possibly that employer’s industry.
The memo also serves as cautionary tale to employers that because the ability to take unilateral action does not release the employer from bargaining over the effects of the change.
Q: Are there any specific criteria we must follow when beginning to recall employees to work?
A: Seniority will be subject to the least amount of scrutiny. However, absent any collective bargaining agreement obligations stating otherwise, companies can recall employees per a performance-based system or per the operational needs of the company.
Companies using performance as a base should create an internal document outlining the specific parameters being used (e.g., attendance, overall grade on the employee’s most recent evaluation) and the order in which employees will be recalled based on the selected standards. The list should then be reviewed to ensure the criteria do not have a disparate impact on any specific group. Similarly, when recalling employees based on operational need, the employer should be prepared to justify why those being recalled (versus those not being recalled) are needed by the business at that time.
Q: If my employees are on unpaid furlough, can they go work for another company?
A: Generally speaking, when an employee is placed on unpaid furlough, it is like he or she is on unpaid administrative leave. The person is still considered an employee and may still be receiving benefits. In addition, the company may also have policies (conflict of interest, noncompete, etc.) that might typically prohibit additional work. That said, if an employer is willing to waive those prohibitive policies, an employee could obtain another job while on furlough. In that case, the original employer should consider issues such as joint employment, confidentiality, ensuring the employee understands that the waiver of any applicable policies is temporary and whether there is concern about the employee seeking long-term employment with the new employer.
