Can I make changes to unionized employees’ work schedules or duties in response to COVID-19?
Wages, hours, and terms and conditions of employment are mandatory subjects of bargaining. That means that employers generally cannot make unilateral changes to these facets of employment. This rule applies even in emergency situations such as this one, unless your collective bargaining agreement provides otherwise.
The first authority for determining your rights and obligations is your own collective bargaining agreement. Review your management rights or similar clauses in your collective bargaining agreement to determine your employer flexibility in determining work assignments, scheduling, and layoffs.
What about a force majeure clause?
If you have a force majeure clause in your collective bargaining agreement, it could relieve you from performing your contractual obligations with respect to wages, scheduling, and benefits when certain circumstances beyond your control arise. Whether COVID-19 triggers a force majeure clause in a contract will vary depending on the language of your collective bargaining agreement.
Even if you have no force majeure clause in your contract, the general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. Although a COVID-19 pandemic would seem to fit the description of a “compelling economic exigency,” it is a highly factual inquiry. You will need to analyze the pandemic’s impact on your company and analyze the law in relation to your company’s particular situation to determine whether such exigencies exist.
Should I give notice to the union before I make a change?
Yes. The safest course (and the one most likely to avoid future litigation) is to notify the union if you need to make a change. The law requires employers to give the union “adequate” notice of a proposed change, although there is no clear rule as to how much notice is required. If you can show an exigent need for an immediate change, a notice period as short as a couple of days might be good enough.
Can my union workers refuse to work?
Maybe. You will want to understand their reason for refusing to work and review the no-strike clause and any other applicable clauses in the collective bargaining agreement. Most such provisions effectively preclude workers from striking or refusing to work.
However, most workers can refuse work if they reasonably believe they are in imminent danger. This is a common exception to the “work now, grieve later” rule. Therefore, you will need to consider such demands on a case-by-case basis.
Visit Schwabe’s COVID-19 resource page for more information.
Ideas & Insights
News and Insights delivered to your inbox