On November 5, 2021, the U.S. Department of Labor, through the Occupational Safety and Health Administration (OSHA), issued an Emergency Temporary Standard to Protect Workers from Coronavirus (ETS). The ETS covers employers with 100 or more employees—firm or company-wide—and provides options for compliance. The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a policy requiring employees to choose between vaccination and regular COVID-19 testing and wearing a face covering at work. The ETS also requires covered employers to provide up to four hours of paid time to workers to get vaccinated and to allow for paid leave to recover from side effects.
The Labor Law Insider continues the discussion in this podcast episode with Tom Godar, Tom O’Day, Terry Potter and Rufino Gaytán on actions employers should take proactively to deter unions from garnering employee support in the workplace. Shifting social issues in and outside the workplace along with significant public support for labor unions subject all companies to the risk of a successful organizing campaign, resulting in a unionized workforce. Tune in to our podcast to learn about the steps all employers should take to protect their direct relationship with employees.
The Labor Law Insider takes on the recharged union optimism and activity in this podcast episode. Moderator Tom Godar is joined by members of Husch Blackwell’s Labor Law team, Terry Potter, Tom O’Day, and Rufino Gaytán, to discuss the increase in public support for unions, recent changes in organizing activities by unions, and implications for employers. With the benefit of their more than 100 years of combined experience in labor law, our panel discusses actions employers should take to maintain a direct relationship with their employees as unions attempt to increase their organizing efforts in the workplace.
Join us to listen to the latest episode in our series, “The Biden Administration: Expected Changes at the NLRB.” Alternatively, a short summary of the topics covered in the podcast is also available on our website.
After President Biden won the November 2020 general election, nobody really expected the National Labor Relations Board’s (“NLRB’s”) employer-friendly doctrines to survive the new Administration. And they won’t. Continue Reading NLRB General Counsel’s Wish List: Reverse the Trump Board
We are thrilled to welcome Joe Skinner to Husch Blackwell after a long tenure as Labor & Employment Counsel at FedEx. He’s picking up where he left off on the Labor & Employment team in St. Louis and shares this recent article for employers on the challenges of military leave administration under the Uniformed Services Employment and Reemployment Rights Act (USERRA). With regard to unionized workforces, provisions of collective bargaining agreements must give way to USERRA when the federal statute provides more generous employee rights and entitlements.
Read the article for information on ways to avoid mistakes and misadministration of key provisions under USERRA:
In episode three of the Labor Law Insider podcast, Husch Blackwell attorneys Tom Godar, David Hertel and Laura Malugade note the confirmation of Jennifer Abruzzo as General Counsel as well as two new nominations to the National Labor Relations Board which, upon confirmation, will usher in a new Democratic majority on the Board. With the new majority, employers can expect to see changes in labor laws, including laws that aid union organization efforts. In episode three of our podcast, our panel of labor law attorneys will discuss potential changes that permit unions to organize and represent small units of employees within an employer’s workforce called micro-units, and union efforts to organize remote workers.
Join us to listen to the third episode in our series, “The Biden Administration: Expected Changes at the NLRB.” In addition to discussing these potential changes, our panel offers potential strategies for employers to proactively address the anticipated changes. Alternatively, a short summary of the topics covered in the podcast is also available on our website.
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