COVID-19 pandemic triggers NLRA considerations

As if employers and their HR personnel don't have enough to deal with, all must be mindful of the protections and prohibitions found in the National Labor Relations Act (NLRA) when addressing the many employment-related issues triggered by the coronavirus. Even if you don't have a union, the NLRA can be implicated when you're making difficult employment decisions in order to ride out the COVID-19 wave.

If you don't have a union

The NLRA protects employees who engage in “concerted activity” to improve or change their working conditions. If an employer disciplines an employee for having engaged in concerted activity, it will have violated the Act's antiretaliation provisions and be subject to an unfair labor practice charge. That is the case regardless of whether the employees are union members or not. Concerted activity occurs when two or more employees act together with respect to any matter that's related to the terms and conditions of their employment.

In the COVID-19 context, most, if not all, employee concerns will be prompted by workplace safety issues. For instance, they may mutually decide to wear or insist on wearing masks to work—even though your organization hasn't previously allowed them. Since the request would be viewed as a safety issue (and thus affecting a term or condition of employment), you should be cautious about disciplining them.