On June 10, 2021 OSHA issued a Healthcare Emergency Temporary Standard (ETS) to help address the circumstances surrounding occupational hazards existing in health care during the COVID-19 pandemic. The rule was published in the  in the Federal Register and became effective on June 21. Employers must comply with most of  the requirements set forth in the ETS by July 6 of this year. According to OSHA the “ETS is necessary to protect the healthcare workers with the highest risk of contracting COVID-19 at work. Healthcare workers face a particularly elevated risk of contracting COVID-19 in settings where patients with suspected or confirmed COVID-19 receive treatment, especially those healthcare workers providing direct care to patients. “

Fundamental to the rule is the employer’s obligation to establish a plan to deal with these occupational hazards. This plan should be developed after identifying key hazards using an assessment required under the same standard. Areas that must be covered by the plan include communications with employees, application to common situs employers, screening of employees regarding COVID-19, development and  implementation of CDC guidelines consistent with limiting transmission of COVID-19, and PPE use, among many other factors.

The rule states that employers must seek the “input and involvement” of non-managerial employees and their representatives, if any, in both the hazard assessment and the development and implementation of the COVID-19 plan. For union employees, the representative is likely the union who represents the workers. The rule does not provide further definition to this “input and involvement” obligation. That is the extent of the guidance set forth in the ETS itself. The prefacing comments to the rule offers some additional guidance. Significantly, the ETS  does not use the critical word “bargain” or phrase “duty to bargain” as part of the guidelines; rather the language is more general using the phrase “must seek the input and involvement of non-managerial employees and their representatives” and “seek feedback”, etc. In fact, these prefacing remarks indicate that “in the case of the unionized workplace, a safety committee established through a collective bargaining agreement may be an appropriate source for this input based on the definition and scope of the committee’s work.”

At this point in the COVID-19 crisis, many employers have been working with their employees and, where there is a union, by and through their bargaining representatives as to most if not all the issues that are addressed in the new rule. Whether there is the duty to bargain regarding any of these topics will be very site specific to the collective bargaining relationship established at any single site. And, of course, OSHA is not the National Labor Relations Board (NLRB). It remains to be seen if and when the NLRB will weigh in on these matters. Indeed, the duty to bargain in these circumstances was addressed in our previous blog post Labor Relations Issues and COVID-19: Avoiding NLRA Violations Through Proactive Measures, and it  remains  an effective resource in reviewing the issues that may come up regarding such matters. In particular, employers should also conduct a review of their current collective bargaining agreement as to issues of waiver of any bargaining obligation, as that will be the most likely source of any defense to a failure to bargain.

Earlier this spring, in a 3-1 vote, the Board issued a notice and solicited briefs on whether to reconsider Johnnie’s Poultry doctrine (doctrine), which was established in the 1964 Board decision, Johnnie’s Poultry Co. The doctrine balances the legitimate need of the employer to question employees as part of its investigation of facts and preparation of its defense for the litigation of unfair labor charges in administrative hearings against the employees’ right to engage in protected activity or otherwise exercise their statutory rights under section 7 of the National Labor Relations Act (Act). To minimize the risk of coercive behavior levied against employees during the interviews, the doctrine establishes safeguards that limit the scope and manner of  employers’ interviews with employees. Chair McFerran, the sole Democrat on the Board, opposes reconsideration of the doctrine and dissented from the notice. Continue Reading NLRB Decision to Reconsider Johnnie’s Poultry Doctrine Remains Pending

In episode 2 of the Labor Law Insider podcast, Husch Blackwell Attorneys Tom Godar, Rufino Gaytán, and Kat Pearlstone discuss the impacts of the impending policy shift on employer policies and workplace rules regarding:

  • Employee access to IT systems for  nonwork-related communications;
  • Facially neutral workplace rules that negatively impact protected concerted activity;
  • Confidentiality obligations during internal investigations; and
  • Limitations on abusive workplace conduct.

Join us to listen to the second episode in our series, “The Biden Administration: Expected Changes at the NLRB.”  In addition to discussing these potential policy changes at the Board, Tom, Rufino and Kat offer potential strategies for employers to proactively address the expected changes. Alternatively, a short summary of the topics covered in the podcast is also available on our website.

 

On June 1, 2021, in a 5-2 decision, the Missouri Supreme Court sitting en banc affirmed a circuit court decision that voided in its entirety HB 1413, which was enacted by the Missouri legislature in 2018 and sought to change collective bargaining laws for public-sector labor organizations in the state of Missouri. We previously discussed the circuit court’s decision in our December 14, 2020 post, Missouri Supreme Court to Decide Constitutionality of Public Reform Law. While the circuit court decision permanently enjoined the Missouri State Board of Mediation and Missouri Department of Labor and Industrial Relations from implementing and enforcing the law, the law was not void with respect to entities that were not parties to the litigation—until the Missouri Supreme Court released its decision. As of June 1, 2020, HB 1413 is void in its entirety with respect to all entities in Missouri. Continue Reading Missouri Supreme Court Voids 2018 Missouri Public Reform Law

In this week’s edition of our “Funny You Should Ask” series, Tom Godar and Terry Potter discuss whether there’s a need to bargain before imposing a mandate that employees are fully  vaccinated against COVID-19 before reporting to work: https://www.healthcarelawinsights.com/2021/05/funny-you-should-ask-is-a-vaccine-mandate-subject-of-bargaining/

It’s become increasingly common for businesses to subcontract workers to perform jobs at a location that is shared with the business or other neutral third parties. When picketing at common job sites shared by the employees of the contractor/employer and the neutral third party, the right of subcontracted employees to engage in collective action at a shared job site must be reconciled with the prohibition on secondary picketing against neutral third parties under the National Labor Relations Act (NLRA). In Service Employees International Union Local 87 v. NLRB (Service Employees International), the Ninth Circuit held that the Board erred in concluding that picketing constituted unlawful secondary picketing where the picketing activity at a shared job site clearly identified the primary employer as the target of the picketing and did not direct coercive activity against neutral third parties. Continue Reading Ninth Circuit Construes Secondary Picketing in Context of Shared Job Site

Given President Joe Biden’s commitment to strengthening labor laws on behalf of workers, the Husch Blackwell Labor & Employment group anticipates dramatic shifts in labor law interpretation. As a result, we’ve launched a new series, The Labor Law Insider Podcast where our group will discuss the changes that we expect to occur under the Biden Administration and strategies that employers should adopt in anticipation of these changes to avoid unnecessary disruptions to business operations.

Whether or not you have a unionized workforce, join us to listen to the first episode in our series, “ The Biden Administration: Expected Changes at the NLRB where we discuss how the changes in NLRB leadership will likely affect employers and the workplace.

We will re-convene regularly, once each month, with members of the Husch Blackwell Labor & Employment practice group to continue discussions on timely and relevant topics to employers. We will provide these updates in both written and audio format, and we encourage you to subscribe to our various labor and employment law mailing lists.

Key Points:

  • The Western District of the Missouri Court of Appeals upheld a narrow portion of section 110.010.B.4(a) of the University of Missouri System Rules and Regulations that prohibits employees or students from possessing or discharging firearms, weapons, and explosives on University property.
  • However, the University cannot prohibit employees from possessing a firearm that is not visible inside a locked vehicle parked on University property, because it conflicts with and is preempted by section 571.030.6 of the Missouri Revised Statutes.

Continue Reading Court Upholds Narrow University Rule to Reduce Firearm Crime

The Protecting the Right to Organize (PRO Act) (H.R. 842) is a sweeping effort to amend longstanding labor laws to facilitate union and employee organizing efforts. The union-friendly legislation would make the most significant modifications to the National Labor Relations Act since the Taft-Hartley Act restricted union power in 1947. The proposed changes would give workers and unions more power in disputes at work, add monetary penalties for companies that retaliate against workers who organize and expand collective bargaining rights for many workers.  The PRO Act would also weaken “right-to-work” laws in more than half of the states that give employees the right to choose not to join or pay dues to unions.

These efforts to tip the balance in favor of union organizing are not new. We have seen many of these proposed changes show up in past legislative efforts. Similar changes were part of the Employee Free Choice Act introduced before the election of, and supported by, President Obama. The PRO Act passed the Democratic controlled House last year but was never taken up by the then GOP majority Senate. This year the Democrats narrowly control the Senate, but not by enough votes to overcome a filibuster, which ordinarily means that the measure is likely dead again.

Below is a summary of a several provisions of the PRO Act:

Continue Reading The PRO Act – A Wish List For Revival of Unions

Hospitals and non-acute care settings beware: Micro-Units are about to make their way back into Healthcare Union organizing. Over the coming months, we can expect to see many significant changes to labor issues affecting healthcare and other sectors of our marketplace. The National Labor Relations Board (“NLRB”) is almost certain to reinstate the standards of what constitutes an appropriate bargaining unit as set forth in a 2011 case, Specialty Healthcare, allowing unions to target smaller groups of employees to organize. This case has encouraged Union organizing of Micro-Units in various settings, especially healthcare. The Board had overruled that decision in 2017, PCC Structurals, Inc., and returned to “community of interest” analysis which reviewed whether the unit employees “share a community of interest sufficiently distinct from the interest of employees excluded from the petition-for group to warrant finding that the purposed group constitutes as separate bargaining unit.” Continue Reading Micro-Units Are Back in Healthcare Union Organizing