Hunton Employment & Labor Perspectives

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

As states have worked to process the millions of unemployment claims arising out of the pandemic, many questions have arisen about who is eligible for the federal Pandemic Unemployment Assistance (PUA) benefit under the CARES Act.  The Department of Labor’s most recent guidance attempts to answer many of these questions posed by the states and may be helpful to employers considering furloughs or layoffs.

In recent weeks, the states have begun to announce strategies for reopening public life and business activities. Just as the shutdown orders took varying forms on a state-by-state basis, it appears the reopening orders will follow a similarly varied and state-by-state approach, creating new challenges for multi-state employers.  However, there are some trends starting to emerge that may help employers piece together a cohesive strategy for bringing their employees safely back to work.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.

In a recent decision of first impression, the NLRB held that its contract coverage doctrine does not apply to changes to the terms and conditions of employment after the expiration of the parties’ collective bargaining agreement, unless the contract contained explicit language that the relevant provision would survive contract expiration.  Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 369 NLRB No. 61 (2020).

The contract coverage doctrine was adopted by the NLRB in MV Transportation, Inc., 368 NLRB No. 66 (2019). There, the Board held that it would “examine the plain language of the collective bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally.”  Id.  The contract coverage doctrine dispenses with the requirement that an employer demonstrate that the union clearly and unmistakably waived its right to bargain over changes made based on contractual language.

Please join Hunton Andrews Kurth’s labor and employment attorneys for an engaging webinar discussion on business considerations for employers as employees return to work when shelter in place orders are lifted.

Monday, May 11, 2020
3:00 pm–4:00 pm ET

On April 23, 2020, the EEOC updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here, to address questions that many employers are struggling with related to employee COVID-19 testing.  The EEOC’s new guidance confirms that employers are authorized to administer COVID-19 tests before allowing employees to enter the workplace, and that doing so does not violate the Americans with Disabilities Act (ADA).

On April 17, 2020 the EEOC updated its’ Technical Assistance Questions and Answers to provide employers with additional guidance interpreting the ADA, Rehabilitation Act, and other EEO Laws in the midst of the COVID-19 pandemic.  The EEOC first reminds employers that while these laws continue to apply, employers should still adhere to the ever-changing guidelines and suggestions made by the CDC or state/local health authorities.  With that in mind, the new guidance addresses several topics, summarized below.

The Seventh Circuit recently held that district courts should not send court-authorized notice of pending FLSA collective actions to employees who are party to a mandatory arbitration agreement.

In Bigger v. Facebook, Inc., the plaintiff-employee brought an FLSA collective action, alleging that she and a group of “similarly situated” employees were misclassified as exempt employees.  When the plaintiff-employee moved to conditionally certify the FLSA collective action and to send court-authorized notice of the action, the defendant-employer argued that notice was improper and inefficient because most putative members were bound by mandatory arbitration agreements that prohibited their participation in the case.  Despite being presented with a copy of the arbitration agreement, the district court granted conditional certification and ordered the parties to issue notice to all putative collective members, including those that had signed arbitration agreements.  The Seventh Circuit granted an interlocutory appeal.

As detailed in our previous alert, Texas Governor Greg Abbott recently committed to begin the gradual process of reopening businesses in Texas. On April 17, 2020, Governor Abbott issued two Executive Orders that relate to the strategic reopening of select services as the first step to open Texas in response to the COVID-19 pandemic.

Impact on Retail Employers

Executive Order GA 16 (“E.O. GA-16”) allows businesses that provide retail services that are not “essential services" to reopen, albeit with restrictions. Specifically, E.O. GA-16 establishes a “retail to-go” model that will allow such  businesses to reopen starting April 24, 2020, provided the reopened establishments deliver the items to customer’s vehicle, home or other location. Notably, Texas employers who reopen operations to provide retail to-go services are required to be in strict compliance with the terms required by the Texas Department of State Health Services (DSHS).