Mandatory Vaccination Programs in Unionized Workplaces?

Much has been written about employers requiring their employees to receive the COVID-19 vaccination. The EEOC’s December 16, 2020 Guidance gives employers a green light from an ADA perspective to implement such a program so long as the employer fulfills its accommodation obligations under Title VII (religion) and the ADA (disability). The EEOC’s Guidance does not deal with the myriad of other potential legal claims to challenge a mandatory program.

Very little has been written about the additional challenges of implementing such a program in a unionized workplace. An article I wrote on that topic was published last week by Wolters Kluwer, a leading global provider of information, software, and services for professionals. Here is the article: “On the Labor Front: Requiring employees in a unionized workplace to be vaccinated”.

Meanwhile, during this early stage of the vaccine’s rollout, employers seem more focused on educating, encouraging and cajoling employees to be vaccinated. If most employees elect to get vaccinated, we may never get to the issue of requiring employees to be vaccinated as a condition of employment. However, the fewer the number of employees who elect to be vaccinated, the greater the likelihood that employers consider a mandatory program, especially in industries where employees have regular contact with the public. As discussed in my article, for employers whose employees are represented by a union, the EEOC’s Guidance is only the first step in moving toward a mandatory program. Dealing with its labor contract and the union may present additional legal and practical challenges.

Image by mohamed Hassan from Pixabay

Payroll Deduction to Fund Connecticut Paid Leave Begins January 1, 2021

In 2019, Connecticut passed a paid leave law and amended its family and medical leave act. The law created the Paid Family and Medical Leave Authority, a quasi-government entity, to administer the funding and processing of claims. (Full disclosure: I am a member of the Board of Directors of this Authority). The benefit is funded through employee contributions collected by employers through a payroll deduction and forwarded to the Family and Medical Leave Trust Fund.

Employees must begin withholding employee contributions beginning January 1, 2021. Employees may receive benefits effective January 1, 2022. The state FMLA amendments become effective on January 1, 2022 as well. For information about the law’s requirements, including employee and employer responsibilities, visit and subscribe to the Authority’s website: ctpaidleave.org.

Coronavirus and the National Labor Relations Act

Until last week, there were a host of leave management issues concerning employees who had tested positive for COVID-19 or were isolating at home. As noted in my blog yesterday, the recently-enacted Families First Coronavirus Response Act has paid leave and sick day provisions that resolve most of those issues, at least on the federal level.

Another federal law employers should have on their COVID-19 radar screen is the National Labor Relations Act (NLRA), one of the nation’s oldest employment laws. Passed in 1935, the NLRA regulates the relationships among employees, unions and employers. While most of the law deals with employers whose employees are represented by a union, some sections give rights to unrepresented employees as well and create obligations for their employers. For example, if employees band together to protest unsafe working conditions, the NLRA may protect their right to do so.

I recently wrote an article entitled Coronavirus and the National Labor Relations Act for my On The Labor Front column published by Wolters Kluwers, a a global provider of professional information, software solutions and services,  To access that article, click here.

 

 

Health Emergency Leave under the Families First Coronavirus Response Act

President Trump signed The Families First Coronavirus Response Act (FFCRA) last Wednesday, March 18, 2020.  The FFCRA has eight “Divisions,” lettered A to G.  Division C is the “Emergency Family and Medical Leave Expansion Act” (EFMLA). Division E is the “Emergency Paid Sick Leave Act” (EPSLA). The EFMLA, in general, provides paid time off during the current health emergency for an employee to care for a child under 18 years of age. The EPSLA provides paid sick leave for an employee for various reasons related to COVID-19. This blog will discuss the EFMLA; my next blog will discuss the EPSLA. If you are administering leaves under these provisions, please read the law carefully and watch for regulations from the Secretary of Labor. To say this situation is changing rapidly is an understatement.

Health Emergency Leave

The EFMLA adds “Health Emergency Leave” as the seventh general “entitlement to leave” category to the Family and Medical Leave Act and adds an employer pay obligation for that category. This category sunsets on December 31, 2020.

HEL is available due to “a qualifying need related to a public health emergency,” defined as an emergency relating to COVID-19 declared by a federal, state or local authority.  An employee has such a need when “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  The EFMLA has definitions for “school” and “child care provider” as well.

 “Employee” and “Employer” Definitions Differ From FMLA

Unlike the FMLA which requires an employee to have worked for the employer from whom leave is sought for at least 12 months, the employment period for eligibility under the EFMLA is only 30 calendar days.

Employers with at least 50 employees must provide FMLA leave. The EFMLA does not apply tp large employers. It only applies to employers with fewer than 500 employees. It also gives the Secretary of Labor authority to issue regulations to exempt smaller employers—those with fewer than 50 employees–if fulfilling the obligations under the ERMLA “would jeopardize the viability of the business as a going concern.”

Also, employers of health care providers and emergency responders may elect to exclude such employees from the EFMLA. The Secretary of Labor is authorized to issue regulations concerning this exclusion as well.

Paid Sick Leave Quarterly: 4Q 2019

Challenges to the Michigan PSL law and Alabama preemption law were resolved during the last quarter. The PSL turbulence in Texas continues as we await a decision from the Texas Supreme Court on whether it will wade into the PSL controversy. This quarterly summary includes:

• Paid Sick Leave Laws Effective in Q4
• Paid Sick Leave Laws Effective After Q4
• Paid Sick Leave Bills Introduced During Q4
• Paid Sick Leave Preemption Developments
• Paid Sick Leave Litigation
• Other Paid Sick Leave Developments To Watch

Paid Sick Leave Laws Effective in Q4

• San Antonio Sick and Safe Leave Ordinance (December 1, 2019)(implementation enjoined, see below).

Paid Sick Leave Laws Effective After Q4

• Duluth Earned Sick and Safe Time Ordinance (January 2020).
• Nevada Paid Leave Law (January 1, 2020).
• Bernalillo County (NM) Employee Wellness Act (July 1, 2020)
• Maine Earned Paid Leave Law (January 1, 2021).

Paid Sick Leave Bills Introduced During Q4

• None

Paid Sick Leave Preemption Developments

Alabama:  The Eleventh Circuit Court of Appeals last month, in an en banc decision, rejected the challenge to Alabama’s minimum wage and employment benefits preemption law. The seven-judge majority held that the federal court does not have jurisdiction to hear the case because the plaintiffs did not have standing to bring it.  Because of this holding, the court did not address the substance of the plaintiffs’ legal claims. Five judges dissented. Alabama’s Uniform Minimum Wage and Right-to-Work Act (HB 174) prohibits local governments from requiring employers to provide employees with wages or benefits, including paid or unpaid leave, not required by state or federal law. This law negated a City of Birmingham ordinance increasing the minimum wage. Plaintiffs claimed that HB 174 was motivated by “racial animus” and brought various race-based challenges to the Act. The plaintiffs may ask the Supreme Court of the United States to review this decision. Marnika Lewis v.  State of Alabama et al. (11th Cir. Case No.17-11009).

Paid Sick Leave Litigation

 Challenges to state PSL laws

Washington: A federal district court has rejected claims by an association of airline carriers that the  Washington State Paid Sick Leave Act (WPSL) as applied to flight crew was unconstitutional and preempted by the federal Airline Deregulation Act (ADA).  The plaintiff had claimed the WPSL violated the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce and the Fourteenth Amendment of the Constitution.  The plaintiff had also claimed the ADA preempts the WPSL law with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA. October 11, 2019).

Massachusetts : The same plaintiff-airline association in the Washington case also sued in Massachusetts, arguing that the Massachusetts Earned Sick Time Law (MESTL) as applied to flight crew is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA, Case No. 1:18-cv-10651,  filed 04/04/18).

Michigan: The Michigan Supreme Court  last month rejected a request to issue an advisory opinion on the legality of the recently enacted state PSL law. The Court said  “we are not persuaded that granting the requests would be an appropriate exercise of the court’s discretion.” Both state legislative chambers had asked the Court for an advisory opinion on the legality of the PSL law enacted last year through a “pass it, then amend it” political ploy. The legislators had hoped the Court would decide whether a law implemented through the use of that ploy was constitutional.

Challenges to local PSL laws

Austin, TX: In November 2018,  a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. If the court decides to hear the case, its decision will likely affect the Dallas and San Antonio PSL ordinances as well. City of Austin, Texas et al v. Texas Ass’n of Business et al  (TX SupCt No. 19-0025).

Dallas, TX: The Dallas City Council passed an Earned Paid Sick Time Ordinance in April. In July, the Texas Public Policy Foundation on behalf of two employers sued to enjoin its implementation and sought a preliminary injunction. The case is pending. ESI/Employee Solutions, LP et al v. City of Dallas et al (E.D.TX,  Case 4:19-cv-00570).Dallas has announced that it “will not enforce the Ordinance except for violations of the anti-retaliation provision, until April 1, 2020.”

San Antonio, TX: A Bexar County judge in November temporarily enjoined implementation of San Antonio’s Paid Sick and Safe Leave Ordinance. A trial date has been set for September 2020. If the Texas Supreme Court decides to review the decision on the Austin PSL, its decision may make the San Antonio trial unnecessary.  Associated Builders & Contractors of South Texas et al v. City of San Antonio et al (Bexar County Court, 408th Judicial District; Cause No. 019CI13921).

New York City: American Airlines sued the NYC Department of Consumer Affairs alleging arguments similar to those raised in the Washington and Massachusetts cases described above. In addition, American alleges that the New York City Earned Safe and Sick Time Act as applied to its flight crews “violates the prohibition against extraterritorial application of local laws under New York” and is void for vagueness. American also alleges it complies with the PSL law for some of its ground crew because their collective bargaining agreement expressly waives the PSL law and provide a comparable benefits in the form of paid days off. American Airlines, Inc. v. NYC Dep’t of Consumer Affairs et al (E.D.N.Y. Case 1:19-cv-04424l, filed 08/01/19). The suit also seeks to enjoin NYC’s enforcement action filed July 24, 2019 against American at the Office of Administrative Trials and Hearings.

Pittsburgh: Pittsburgh employers must beware the PSL ides of March. The Supreme Court of Pennsylvania held in July the City of Pittsburgh had authority to enact the Paid Sick Days Act. Last month, the City announced the PSDA would be effective March 15, 2020. The Steel City also issued guidelines for administering the PSDA.

Other Paid Sick Leave Developments To Watch

• With primary campaign season in full swing, many of the candidates support some form of paid leave. Ballotopedia compiled the candidates’ statements about paid leave here.
• New York State may be the next PSL state. In his January 11, 2020 State of the State address and to fulfill his promise of a “secure and thriving workplace,” Governor Cuomo proposed a PSL law requiring employers with 5 to 99 employees to provide five paid sick days and larger employers to provide at least seven paid sick days., Businesses with four or fewer employees will guarantee five days of job-protected unpaid sick leave to their employees every year.
• Starbucks has agreed to create a $150,000 restitution fund for current and former employees and to take other remedial steps to settle allegations that it violated the New York City Paid Sick and Safe Leave Law, according to a press release from Mayor Bill de Blasio’s office. According to that release, an  investigation established that that Starbucks policy “required employees to find a substitute when they used sick leave and that if an employee failed to find that substitute, it could result in “corrective action, up to and including termination of employment.”

Request for Opinion on Michigan Paid Sick Leave Law Rejected

With two concurring opinions, three dissents, 74 footnotes and a combined  48 pages of opinions, the Michigan Supreme Court yesterday said no, it would not issue an advisory opinion on the legality of the recently enacted state PSL law. In the one-paragraph opinion of the Court, the Court said that “we are not persuaded that granting the requests would be an appropriate exercise of the court’s discretion.” Both state legislative chambers had asked the Court for an advisory opinion on the legality of the PSL law enacted last year through a “pass it, then amend it” political ploy. The legislators had hoped the Court would decide whether a law implemented through the use of that ploy was constitutional.

It all began with PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it. Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber.

The urgency to implement this strategy increased in November 2018 when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law. Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill, which is now in effect.

In April, 2019, the Court agreed to consider whether to issue such an opinion. Oral argument on that issue was held in July.

Challenge to Alabama Preemption Law Rejected

The Eleventh Circuit Court of Appeals on Friday, in an en banc decision, rejected the challenge to Alabama’s minimum wage and employment benefits preemption law. The seven-judge majority held that the federal court does not have jurisdiction to hear the case because the plaintiffs did not have standing to bring it.  Because of this holding, the court did not address the substance of the plaintiffs’ legal claims. Five judges dissented.

This litigation has been wending through the Alabama federal courts for nearly four years. In February, 2016, Alabama enacted the Uniform Minimum Wage and Right-to-Work Act (HB 174), which prohibited local governments from requiring employers to provide employees with wages or benefits, including paid or unpaid leave, not required by state or federal law. This law negated a City of Birmingham ordinance increasing the minimum wage.

Plaintiffs—several individuals plus Alabama NAACP, Greater Birmingham Ministries, the Alabama Legislative Black Caucus, and African-American members of the Alabama House of Representatives and Senate–claimed that HB 174 was motivated by “racial animus” and brought various race-based challenges to the Act. In February 2017, a federal court judge rejected all of the plaintiffs’ claims. In July 2018, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim. When the Eleventh Circuit agreed to hear the case en banc, it vacated the panel’s opinion.

While the plaintiffs may ask the Supreme Court of the United States to hear an appeal, for the time being, I have included Alabama on my list of states that preempt local jurisdictions from enacting any ordinance requiring employers to provide employees leave, whether paid or unpaid. Marnika Lewis v.  State of Alabama et al. (11th Cir. Case No.17-11009).

San Antonio Sick and Safe Leave Law Enjoined

The PSL turbulence in Texas continues. A Bexar County judge today temporarily enjoined implementation of San Antonio’s Paid Sick and Safe Leave Ordinance. The Ordinance was to be effective on December 1, 2019.

The petitioners seeking the injunction were the State of Texas and a cadre of business interests.  Judge Peter Sakai  heard oral argument on the request for a temporary injunction two weeks ago and granted that request in a letter ruling today. The court ordered that a date certain for a trial on the merits be set as soon as possible.

San Antonio’s efforts to enact a PSL ordinance have been challenged in litigation since July. The initial San Antonio Earned Paid Sick Leave Ordinance was to be effective August 1, 2019.  On July 15, a lawsuit was filed seeking to enjoin its implementation The lawsuit raised a myriad of constitutional claims including that it was preempted by the Texas Minimum Wage Act. The plaintiffs and defendants had agreed to postpone the ordinance’s implementation until December 1, 2019. In October, the City Council amended the ordinance and renamed in the Sick and Safe Leave Ordinance.  Today’s ruling temporarily enjoins implementation of the amended ordinance

In addition to San Antonio, Austin and Dallas have also enacted PSL ordinances. The PSL ordinance in Austin was enjoined a year ago.  The City of Austin has asked the Supreme Court of Texas to review that decision. There is also a legal challenge pending to the  Dallas PSL ordinance.

Paid Sick Leave Quarterly: 3Q 2019

The PSL turbulence in Texas garnered most of the PSL headlines in the third quarter. How that turbulence ends will determine the fate of PSL ordinances in Austin, Dallas and San Antonio. This quarterly summary includes:

• Paid Sick Leave Laws Effective in Q3
• Paid Sick Leave Laws Effective After Q3
• Paid Sick Leave Bills Introduced During Q3
• Paid Sick Leave Preemption Developments
• Paid Sick Leave Litigation
• Other Paid Sick Leave Developments To Watch

Paid Sick Leave Laws Effective in Q3

• Dallas Earned Paid Sick Time Ordinance (August 1, 2019).
• San Antonio Sick and Safe Leave Ordinance (December 1, 2019).

Paid Sick Leave Laws Effective After Q3

• Duluth Earned Sick and Safe Time Ordinance (January 2020).
• Nevada Paid Leave Law (January 1, 2020).
• Bernalillo County (NM) Employee Wellness Act (July 1, 2020)
• Maine Earned Paid Leave Law (January 1, 2021).

Paid Sick Leave Bills Introduced During Q3

• In August, Bernalillo County Commissioners (NM) enacted an “any reason” leave law. The Employee Wellness Act applies to employers in the unincorporated limits of the County, which excludes the  City of Albuquerque. The County ordinance has the typical PSL architecture less the list of approved uses. In October, 2019, the Commissioners amended the law to include annual caps on paid leave accrued based on the size of the employer and removes the 90 day wait period to begin accruing leave. The  ordinance at the link above includes the amendments.

Paid Sick Leave Preemption Developments

Alabama:  The Eleventh Circuit Court of Appeals en banc will resolve the challenge to Alabama’s minimum wage and employment benefits preemption law. The Court heard oral argument on June 25, 2019. The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. The plaintiffs brought various race-based challenges to the Act. In July 2018, a three-judge panel of the Eleventh Circuit affirmed the lower court’s dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v.  State of Alabama et al. (11th Cir) (11th Cir. Case No.17-11009).

Paid Sick Leave Litigation

 Challenges to state PSL laws

Washington: A federal district court has rejected claims by an association of airline carriers that the  Washington State Paid Sick Leave Act (WPSL) as applied to flight crew was unconstitutional and preempted by the federal Airline Deregulation Act (ADA).  The plaintiff had claimed the WPSL violated the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce and the Fourteenth Amendment of the Constitution.  The plaintiff had also claimed the ADA preempts the WPSL law with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA. October 11, 2019).

Massachusetts : The same plaintiff-airline association in the Washington case also sued in Massachusetts, arguing that the Massachusetts Earned Sick Time Law (MESTL) as applied to flight crew is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA, Case No. 1:18-cv-10651,  filed 04/04/18).

Michigan: The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court heard oral argument on July 17, 2019. The first of three questions listed in the Court’s Order concern whether it should exercise its discretion and issue the requested advisory opinion.

Challenges to local PSL laws

Austin, TX: In November 2018,  a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. If the court decides to hear the case, its decision will likely affect the Dallas and San Antonio PSL ordinances as well. City of Austin, Texas et al v. Texas Ass’n of Business et al  (TX SupCt No. 19-0025).

Dallas, TX: The Dallas City Council passed an Earned Paid Sick Time Ordinance in April. In July, the Texas Public Policy Foundation on behalf of two employers sued to enjoin its implementation and sought a preliminary injunction. The case is pending. ESI/Employee Solutions, LP et al v. City of Dallas et al (E.D.TX,  Case 4:19-cv-00570).Dallas has announced that it “will not enforce the Ordinance except for violations of the anti-retaliation provision, until April 1, 2020.”

San Antonio, TX: The original San Antonio Earned Paid Sick Leave Ordinance was to be effective August 1. On July 15, a cadre of business interests had filed a lawsuit seeking to enjoin implementation of the ordinance. The lawsuit raised a myriad of constitutional claims as well as the TMWA preemption claim. The plaintiffs and defendants had agreed to postpone the ordinance’s implementation date until December 1, 2019. On October 3, 2019, the San Antonio City Council amended its PSL law, now renamed the San Antonio Sick and Safe Leave Ordinance, which is scheduled to go into effect on December 1, 2019.  The lawsuit  had been stayed but remains pending.  Associated Builders & Contractors of South Texas et al v. City of San Antonio et al (Bexar County Court, 408th Judicial District; Cause No. 019CI13921).

New York City: American Airlines sued the NYC Department of Consumer Affairs alleging arguments similar to those raised in the Washington and Massachusetts cases described above. In addition, American alleges that the New York City Earned Safe and Sick Time Act as applied to its flight crews “violates the prohibition against extraterritorial application of local laws under New York” and is void for vagueness. American also alleges it complies with the PSL law for some of its ground crew because their collective bargaining agreement expressly waives the PSL law and provide a comparable benefits in the form of paid days off. American Airlines, Inc. v. NYC Dep’t of Consumer Affairs et al (E.D.N.Y. Case 1:19-cv-04424l, filed 08/01/19). The suit also seeks to enjoin NYC’s enforcement action filed July 24, 2019 against American at the Office of Administrative Trials and Hearings.

Pittsburgh: The Supreme Court of Pennsylvania held in July the City of Pittsburgh had authority to enact the Paid Sick Days Act. This opinion reverses a lower court opinion and frees the PSDA from the legal limbo it has been in since its enactment in 2015. The PSDA hews to the typical architecture of a PSL law. Employees of employers with at least fifteen employees accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually. Employees of smaller employers accrue up to 24 hours of unpaid sick time during the first year of the PSDA’s implementation and up to 24 hours of paid time subsequently.

Other Paid Sick Leave Developments To Watch

• With primary campaign season in full swing, many of the candidates support some form of paid leave. Ballotopedia compiled the candidates’ statements about paid leave here.
• Some states with PSL laws have enacted paid family and medical leave laws which, in effect, are a significant expansion of their PSL laws.  Eight states now offer paid family and medical leave: CA, CT, MA, NY, NJ, OR, RI, WA. .

Paid Leave Laws Shortchange Some Union-Represented Employees

I have posted often about union-represented employees being shortchanged by paid leave laws. See here, here and here.   This has always baffled me since unions have been staunch advocates of such laws. For my most recent On the Labor Front article, I analyzed the extent to which some paid leave laws shortchange union-represented employees and the legislative tactics used to achieve that result.

I also sought, without success, to identify the reason union-represented employees come up short in the legislative drafting of these laws.  To me, it remains “a riddle wrapped in a mystery inside an enigma,” to borrow a phrase from Winston Churchill.

Here is a link to my On the Labor Front article.

I end with the same entreaty I have made in my prior posts on this topic:  help me understand!