Legal updates

 

As public sector entities grapple with a host of operational challenges related to the COVID-19 outbreak, public sector unions have begun to submit questions (and in some cases demands) relating to the safety, welfare and benefits of their bargaining unit members.  Among other things, at least one police union has begun making demands regarding safety equipment for their police officer members, while other unions are posing questions regarding pay and benefits for employees who are sent home due to concerns over the spread of COVID-19.  Such requests and demands add another layer of complexity for those public employers who already find themselves focusing on the maintenance of critical public services.

When responding to these labor inquiries and demands, Illinois public employers should consider their legal obligations under the Illinois Public Labor Relations Act and Educational Labor Relations Act, which in some cases may excuse the employer from immediately bargaining and/or responding to a union’s demand and/or request.  Some examples include:

• Bargaining Demands:  If a labor organization demands to bargain over a certain issue associated with COVID-19, remember to check any applicable collective bargaining agreements to determine if the “answer” is already provided, or bargaining already is foreclosed by a specific contractual provision.

• Operational Changes to the Status Quo:  In the event a public employer finds a need to change the status quo, remember to check any applicable collective bargaining agreement to determine an employer’s management rights and flexibility. Depending on the contract language at issue, employers may already have the right to make operational changes that affect employees, including for example cancelling vacations, transferring employees from department to department, modifying work schedules, and/or using non-bargaining unit personnel to perform essential bargaining unit work. 

• “Suspension of CBA” Clauses During Emergencies:  In some cases, collective bargaining agreements allow for the temporary suspension of some or all contract provisions in times of civil emergency. Such provisions may give employers additional flexibilities to make time sensitive workplace changes.

• Union Information Requests:  Under both Illinois public labor acts, public employers have a duty to provide information that is necessary and relevant for a union to fulfill its representation obligations that it owes its members. By contrast, not every information request must be fulfilled, and employers may have flexibility in the amount and timing of information that must be provided. Careful consideration should be given to the scope of the request and what Labor Board case law says regarding the type of response owed. 

• Statutory Benefits During Employee Leave:  In the event employees show signs of illness at work, or it is determined that employees must remain at home due to a self-quarantine, consider whether some of those absences will qualify for federal and state leave protections, including but not limited to the Family & Medical Leave Act (FMLA), the Americans with Disabilities Act, and the Illinois Employee Sick Leave Act.  In terms of the FMLA, consider giving an employee who is sent home ill or for self-quarantine purposes the standard FMLA notice and physician certification forms. If or when the physician’s certification form is timely returned, carefully review its contents to determine whether the employee is eligible for FMLA leave.    

• Workplace Safety Considerations:  Illinois public employers have a general duty pursuant to the Illinois Occupational Safety and Health Act to provide reasonable protection to the lives, health, and safety of its employees.  Therefore, consideration should be given to whether employees (especially those public safety employees who come into regular contact with citizens) have been provided with the appropriate protective equipment to help avoid contamination by viruses like COVID-19.   

 Answers to these questions and issues are not always easy, and often require a consideration of complex and interrelated laws, rules and contract provisions. As a result, public employers should consult their labor counsel when confronted with union bargaining demands and requests, in order to ensure that a proper legal response is provided in the most efficient and effective manner possible. 

* * *