Most employers wrestling with COVID-19 aren’t paying much attention to the labor law issues arising out of the pandemic, says John Sarno, president of Employers association of New Jersey.
Indeed, because most U.S. employers are non-union, many operate under the mistaken belief that they fall outside the reach of the National Labor Relations Act and don’t have to concern themselves with labor law compliance. However, the NLRA protects almost all private sector employees regardless of whether they are union-represented or not.
“In making the decision to require a vaccine as a condition of employment, employers should be mindful of the national labor law,” says Sarno.
The labor law grants employees the right to engage in protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, and makes it unlawful for an employer to interfere with or restrain employees in the exercise of those rights.
Examples of protected activity could include protesting against a mandatory vaccination policy (or the lack of one), organized office communications or flyers among co-workers concerning a vaccination mandate, or discussions among co-workers about the vaccine.
“Typically, legal protection requires two or more employees to act ‘in concert’ – together with one another - or at least one employee acting in the interest of others,” says Sarno.
For example, in Larry Peel Co., Case No. 16-CA-259403, an employee was discharged for not reporting to work after having had his request to work from home denied by his employer. The National labor Relations Board said that the request to work from home was not protected activity because the employee’s request, though related to working conditions, was individual and did not concern itself with the interest or concerns of others.
The outcome of this case might have been different had the employee couched his request in terms of employees, in general, or he and his coworkers needing to be allowed to work from home due to COVID-19, says Sarno.
“It sometimes can be a fine line for employers trying to separate concerted conduct from activity that is individual and self-interested,” he adds.
Employers Association of New Jersey is providing training to employers upon request. More here.