With some state and local shutdown orders imposed on nonessential businesses in response to the COVID-19 pandemic set to expire, many employers are planning to reopen or expand operations. While establishments may be pleased with the ability to do business again, the continued presence of the virus in the community may cause employees to second-guess returning (or continuing) to work.

Employers should keep in mind that most private-sector employees ― whether employed in a union or non-union workplace ― are entitled to collectively protest working conditions and raise safety-related issues under the National Labor Relations Act (NLRA).

Employee Rights under Federal Law

Under the NLRA, most employees have a statutory right to act together and discuss, protest and/or otherwise address work-related issues. The term of art used to reference this type of conduct in ordinary National Labor Relations Board (NLRB) parlance is protected concerted activity. Section 7 of the NLRA provides, in relevant part, that employees have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection.” What is or is not protected activity, however, has been the subject of countless NLRB and federal court decisions. Practically speaking, analyzing such protected conduct usually requires a case-by-case examination.

That said, employees’ rights to engage in protected concerted activities under the current coronavirus pandemic emergency may include having a protected right to protest their employer’s actions or perceived inaction related to COVID-19. This may include, but is not limited to:

• Talking with one or more co-workers about working conditions;
• Openly calling for paid sick leave, availability of personal protective equipment and/or virus testing capabilities;
• Requests for work schedule accommodations, such as shortening the workweek, adjusting start/end times, or staggering shifts;
• Participating in a concerted refusal to work in unsafe conditions;
• Circulating petitions discussing health, safety and welfare concerns in the workplace;

AND

• Joining together to talk directly to an employer, government agency or the media about safety or other concerns in the workplace (the Board recently reaffirmed employees’ protected right to communicate with third parties such as the media, and complain about working conditions and safety concerns).

Employer Risks and Consequences

In response, employers should not discharge, discipline or threaten employees for, or coercively question employees about this (or any other type of) protected concerted activity. Otherwise, employers risk violating federal law and may be subject to unfair labor practice charges filed by employees and/or unions. The NLRA is still applicable despite the unprecedented scope and impact of COVID-19, and some may even argue that employees’ Section 7 rights in this regard are more important now than ever. Indeed, AFL-CIO President Richard Trumka recently noted that employees “should have the right to refuse to go to work if they believe it's unsafe.” Trumka did not advise his membership to refuse to return to work unless new safety precautions are in place, but one can safely assume that labor organizations such as the AFL-CIO will closely monitor the conditions under which businesses are resuming operations.

Employers must also remember that employees maintain their right to engage in protected concerted activities over workplace conditions even if an employer believes it has taken all appropriate safety measures and/or complied with governmental and agency safety directives in resuming (or continuing to operate) their business. The underlying aspect of a violation in this context does not necessarily take into account what the actual working conditions are, but instead narrows its analysis to the employer’s response to the protected activity and whether that response interfered with, restrained, or otherwise coerced employees in the exercise of their Section 7 rights. Of course, employers may still engage in legitimate, non-discriminatory conduct necessary to maintain and resume their business operations, but specifically what this lawful conduct may look like and the extent of its protection solely depends on the facts at hand.

Lastly, employers should also be mindful that, depending on the circumstances, a single employee may be seen as engaging in protected concerted activity if acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action or seeking to prepare for group action. (Although the Board recently clarified some parameters in relation to protected activity and, for instance, held that an employee’s use of the word “we” – by itself – does not establish that the employee is expressing a group concern.) Relatedly, although each case rests on its own facts, even unionized employees who are subject to no-strike provisions in their contracts may be protected when walking off a job in protest if it is in good faith belief, supported by ascertainable and objective evidence, that they are working under abnormally dangerous conditions.

Navigating the complicated and nuanced web of the NLRA is often difficult for employers even under normal circumstances, but doing so under the current emergency conditions caused by COVID-19 will likely present new challenges. All employers should be aware of the aforementioned rights afforded to employees under federal law and, notably, what they cannot do to infringe on those rights to avoid legal proceedings costing time, money and effort that could otherwise be used to enhance continued business viability during this time.

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