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COVID-19: Employers' Rights and Duties When Pandemic Spurs Protected Concerted Activity
April 21, 2020


All information in this COVID-19 Response Resource issue is effective as of April 21, 2020.

During this pandemic, employers have been forced to ensure employee health and safety while avoiding financial ruin. In some instances, when employees have felt that their demands for workplace safety have been unmet, they have engaged in social media campaigns, walkouts, work stoppages and strikes. These actions will likely continue as employers attempt to transition back to normalcy despite uncertain testing data and conflicting guidance from the federal government, state governments, and health care professionals. During all of this, employers must recognize that employees have the right to engage in protected “concerted activity.”

Employee Rights and Protected Concerted Activity under the National Labor Rights Act

The National Labor Relations Act (NLRA) protects most private-sector employees — whether unionized or not — from termination, suspension or other penalization for engaging in protected concerted activity to increase workplace safety, improve working conditions or increase wages. Protected concerted activity occurs when two or more employees act for their mutual aid or protection concerning the terms and conditions of their employment. Importantly, a single employee may also be protected if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, inducing group action or preparing for group action. In other words, a lot of activity is protected. 

During the last couple months, growing concern over the COVID-19 outbreak has prompted employees to take concerted action to demand safer working conditions, premium pay for working during the pandemic and personal protective equipment. In many instances, this activity is protected concerted activity under the NLRA. Accordingly, employers must ensure that they continue to comply with the NLRA and avoid taking unlawful adverse employment action against employees exercising their rights.

Address Workplace Safety Issues

A common theme in recent news coverage about walkouts is that employees feel employers do not care about their health and safety. Employers can proactively address this concern and potentially avoid concerted activity that halts business activity by following local, state and federal guidelines concerning COVID-19 and engaging with employees about how to improve conditions. Employers should consult federal guidelines, state guidelines, local guidelines, Centers for Disease Control and Prevention, OSHA guidelines and any applicable union guidelines.   

Even if an employer believes it has taken adequate measures to address safety concerns, employees’ concerted activity will generally be protected by the NLRA. If a dispute should arise, employers should communicate with employees or their authorized representatives to understand and address concerns as well as explain which protective measures are being taken and the reason others may not be feasible. An employers’ willingness to acknowledge concerns may help quell employees’ fears and prevent or shorten any concerted activity measures.

Review Collective Bargaining Agreements

Unionized employers should also carefully review any collective bargaining agreements to understand its rights and obligations. Relevant provisions may include no-strike provisions, management rights, leaves of absence, paid time off, health and safety and any waivers. These provisions will govern whether an employer is required to bargain with union representative before it can change certain terms and conditions of employment or whether it can take unilateral action.

COVID-19 has presented a rapidly evolving situation, often requiring quick, decisive action to protect the health and safety of employees as well as the long-term viability of a business. There are complex legal issues that must often be resolved on a case-by-case basis.

For more information about the NLRA, current COVID-19 guidelines, or assistance reviewing a collective bargaining agreement, contact Christina Jepson by calling (801) 536-6820 or send an email to cjepson@parsonsbehle.com.