COVID-19 and the Rights of Essential Businesses When Employees Strike

By Jonathan Levine and A. John Harper III

Essential Businesses (as defined by CISA and in various state “Shelter in Place” or “Stay at Home” orders) and their employees continue to fight the war against COVID-19 with great resolve and compassion.  Healthcare systems have mobilized to treat patients, medical device and personal protective equipment manufacturers are working overtime, and distribution companies continue to ensure that our supply chain remains strong so hospitals, pharmacies, and grocery stores have what they need to support the health and safety of their surrounding communities. 

Recently, the vital services Essential Businesses are providing during this national emergency have been tested, including by brief walkouts and strike threats.  Many employees and some union leaders have been critical of such tactics, and expressed their appreciation for the commitment many Essential Businesses (union and non-union) have shown to keeping their workplaces as safe as possible and rewarding employees for the important work they are doing.

The unique circumstances presented by the COVID-19 pandemic may very well color how the National Labor Relations Board (NLRB), Occupational Safety and Health Administration (OSHA), and courts will decide whether, under what circumstances, or to what extent threats to and actual refusals to work may or may not be protected.  Considerations will undoubtedly include things like the nature and timing of the conduct, the type of work at issue, the industry in which the threat or refusal to work arises, the normal risks associated with the work and the workplace, whether the employer is subject to and complies with specific safety regulations or guidance (including guidance for operations during the pandemic), and whether the activities are prohibited by a labor or other agreement.

For example, the NLRB and U.S. Supreme Court have squarely held that the National Labor Relations Act does not protect work stoppages that are “indefensible” when they are conducted at a time or in a manner that fails to protect the employer’s operations from the type of imminent danger one would expect to result from their sudden refusal to work.  The NLRB has further held that safety-based work stoppages by union employees covered by a contract with a no-strike clause are not protected absent proof of an abnormally hazardous condition, as opposed the normal hazards, associated with their jobs.

Of course, the legal issue of whether a work stoppage or threat of one is protected is secondary to the practical, operational concerns constraining Essential Businesses as they seek to deliver critical goods and services.  The success of Essential Businesses depends, as always, on a strong and engaged workforce.  Yet responses to labor concerns that include discipline or discharge, or lawsuits seeking an injunction or damages, may not be effective immediately and could create liability and public relations issues in any event.

The age-old adage that an ounce of prevention is worth a pound of cure is especially apt these days. Here are some steps employers may take to potentially mitigate business, legal, and public relations risks associated with threats of or actual work stoppages based on safety concerns arising out of the COVID-19 pandemic:

• Review and implement CDC and OSHA guidelines governing workplace safety, sanitation and social distancing to the extent possible.  CDC guidelines may be found here.  OSHA guidelines may be found here and in PDF. 
• Develop and implement an employee engagement plan (for employees at all levels of the organization) that includes regular communications thanking employees for their work and explaining why the business is “essential,” why it is critical that it continue to operate, and what steps the employer is taking to address safety concerns and recognize their efforts.
• Ensure senior executives are as visible as travel and other restrictions permit.
• Be flexible and empathetic with employees, to the greatest extent reasonable under the circumstances.
• Consider establishing suggestion boxes (virtual or otherwise) or other lines of communication directly with employees that will allow the employer to quickly receive and respond to employee complaints and ideas.
• Promptly respond to employee concerns and suggestions.  If employees identify a safety concern, address it, explain how it is being addressed, or, if it cannot be addressed, explain why not.
• Implement a training program for supervisors and managers on the employer’s COVID-19 response, employee communications, and what supervisors and managers are legally permitted to say and are prohibited from saying in the face of employee threats to cease or actual cessations of work. 
• In unionized workplaces, understand what the contract does and does not permit, promptly respond to legitimate union information requests, and be prepared to work with the union on various topics related to the COVID-19 operations plan.  Employers do not need to agree to any union request or demand with respect to employment terms, but some unions have responded well when asked to be part of the solution.

Given the unprecedented nature of the current COVID-19 pandemic, employers should consult with experienced labor counsel about client and industry specific issues that may arise if they are faced with an actual or threatened work stoppage.  Employers should carefully assess the specific legal and factual situation to determine appropriate next steps.