Businesses in the construction industry face a range of labor and employment issues related to COVID-19 as their employees increasingly return to worksites. These concerns may include compliance with government orders for health and safety, handling layoffs and recalls, and issues involving unions and labor relationships.

GOVERNMENT ORDERS FOR HEALTH AND SAFETY

The construction industry, along with other sectors of the economy, must find ways to comply with a myriad of local, state, and federal orders for workplace health and safety in light of COVID-19. Government orders address issues such as social distancing, wearing personal protective gear, recommended health screenings and testing, maintaining confidential medical information, cleaning the work site, screening job applicants for the virus, and communicating these matters to employees.

Construction businesses can expect complications as employees return to work, especially since many employees may express safety concerns. Similarly, substantial coordination between different parties may be needed to conduct workplace health screenings as recommended by some government authorities. In particular, union employers bound by a Collective Bargaining Agreement ("CBA") may find it more cumbersome to modify safety practices in response to COVID-19. Construction businesses with union employees should first review their CBA before making any unilateral changes. The CBA may require employers to engage in discretionary or mandatory bargaining with a union representative before making changes, even those intended to enhance worker safety.

It should be noted that employees subject to a CBA who walk out of work based on safety concerns may have additional statutory protection under Section 502 of the Labor Management Relations Act. This law allows employees to walk off the job if they have a good faith belief the working conditions are abnormally dangerous. Employees who walk off the worksite in response to safety concerns may do so regardless of any CBA clause prohibiting work stoppages; thus, this might become a highly litigated issue as employees return to work under COVID-19 conditions.

LAYOFFS, RECALLS, AND SENIORITY

Union employers in many states have furloughed or laid off employees in response to COVID-19. Others have made adjustments to the number of employees working per shift or to the structure of shifts at the worksite. Where businesses are recalling employees or changing shifts as a result of employees returning to work, they should review the applicable CBA regarding the interplay between seniority rights and staffing. This review may include the management rights clause, layoff and recall clause, seniority clause, and other clauses where staffing, shifts and scheduling are addressed. For instance, where employers have created a new shift in response to staggering shifts to prevent the spread of COVID-19, a CBA may require that an employer provide employees the opportunity to "bid" on the schedule and that the schedule be awarded to the bidding employee with the most seniority. Similarly, recall rights in general could be tied to employee seniority.

UNIONS AND LABOR RELATIONSHIPS

Two additional labor issues that may arise due to COVID-19 in the context of construction businesses include substituting in a subcontractor and barring union representatives from the worksite.

Subbing In

One of the more common scenarios in construction is that a General Contractor executes a Project Labor Agreement ("PLA"), which requires all contractors to either accept the terms of the PLA or to have a pre-existing CBA with a specific union(s). In the course of returning to the worksite after the COVID-19 quarantine, a general contractor may discover that a subcontractor, who was operating pursuant to the PLA, has gone out of business. While this would normally not be an issue and an employer would generally have the right to subcontract as the general contractor sees fit, a construction firm in this case should review the PLA to determine what rights and limitations the firm has with subcontracting work. A general contractor should review the PLA or CBA for provisions related to replacement of the subcontractor that is no longer in business. General contractors should consider whether, and to what extent, the work can be reassigned to another subcontractor already at the worksite, taking into consideration the other terms of the PLA.1

Barring Union Representatives From the Worksite

Employers with CBAs should be mindful that such agreements often include clauses permitting union representatives access to the worksite and to that union's employees. Accordingly, if employers are faced with a union representative demanding to check in with employees at the worksite, employers should review the applicable CBA to see what terms and conditions govern such visits. If the CBA provides access, an employer should ensure that the representative takes appropriate safety precautions while interacting with workers. Employers should be cautious in refusing a union representative access to a worksite or access to union members, even to mitigate the risk of spreading COVID-19, as completely refusing access to union representatives could be a violation of a CBA or constitute an unfair labor practice under the National Labor Relations Act.

PRACTICAL TAKEAWAYS

The scenarios described above related to COVID-19 are by no means an exhaustive list of issues employers in the construction industry may face as employees return to work. Instead, this article is intended to lay out some of the more common fact patterns that could impact construction employers. When dealing with union employees, it is always a best practice to review the applicable CBA or PLA before taking any action. An "act first, ask later" approach could result in workplace interruptions during a period that has already seen significant disruption.

Footnote

1 While it is beyond the scope this article, construction is unique in that changing the subcontractor relationship also could create jurisdictional disputes between unions. Further, an employer could be faced with breaching a PLA or a CBA based on certain subcontracting decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.