NLRB Continues Scrutiny of Employment Arbitration Agreements

Several years ago, employers often faced challenges to handbooks under the National Labor Relations Act ("NLRA"), a federal law regulating union-management relations. This threatened many basic policies such as privacy, confidentiality, professionalism, and at-will employment.

Employment arbitration agreements suffered the same scrutiny with additional arguments that (1) class action waivers prevented "concerted activity" under the NLRA, and (2) the agreements suggested that employees were prohibited from filing charges with, or seeking help from, the National Labor Relations Board ("NLRB").

The Supreme Court resolved the first issue a few years ago, holding that employers cannot be forced to arbitrate class claims without an employer's express consent. (Opinion can be viewed here.) And until recently, businesses faced less pressure when drafting arbitration agreement language given federal courts' deference to national arbitration law.

But change in is the air. The NLRB has a new 'acting' General Counsel - and the NLRB just issued an opinion essentially requiring language informing employees they may file charges directly with the agency.

In a decision issued last week, the Board held an arbitration agreement unlawful even though it contained an express exclusion providing that it did not "limit an employee’s ability to complete any external administrative remedy (such as with the EEOC)." The panel concluded that, even though NLRB proceedings are administrative remedies, an employee could "read [the arbitration] language to encompass filing a charge with the Board, rather than, as stated, with the EEOC" (quoting a similar prior NLRB opinion). The decision, Brinker National Payroll Co., can be downloaded here.

The opinion briefly mentions exclusions that were permitted in other cases. We nonetheless suggest that employers use caution, as current agency staff are likely to enforce the case broadly. We recommend language making clear that NLRA-governed activity is not subject to mandatory arbitration.

A sample agreement containing a clear NLRB exclusion - but with broad application and an express class-action waiver - can be viewed here.

(Our usual disclaimer: not to be used without attorney advice!)

Documentation Dilemma: Recording Worker Vaccination Status

California employers are tasked with documenting "Fully Vaccinated" workers under newly released state standards. Without this documentation, employers must treat an employee as unvaccinated (requiring full masking if the employee comes into contact with others).

But the regulations contain no guidance for "documenting" vaccination status. We believe that expansive forms such as that required in Santa Clara County go too far - requesting unnecessary information beyond whether an individual is currently "Fully Vaccinated." (The Santa Clara County form can be viewed here.)

Cal-OSHA admits that the new regulation "does not specify a particular method," noting only that employers "must record the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential." It suggests options such as keeping copies of vaccination cards, recording the identity of employees who have proof without keeping a copy, and maintaining the identity of employees who "self-attest to vaccination status." (Se DOSH FAQs, here.)

Requesting medical information not expressly required by law can be an unlawful inquiry under state and federal law. Overly broad inquiries are a major concern, particularly as the pandemic recedes and government agencies become less forgiving (as they have) of medical information collection.

We have prepared a sample form that can be used for discussion under the new regulations. Employers adopting a form should remember that it is a sensitive document covered by laws such as the California Confidentiality of Medical Information Act and federal HIPAA. Employers should also remember that vaccination requirements are subject to potential disability and religious belief accommodation, and that the use of face coverings may require physical, mental, and hearing disability/communication accommodations as well.

A sample of our current form (disclaimer: not to be used without attorney advice!) can be viewed here.

Cal-OSHA Eliminates Most Requirements for Vaccinated Employees, Continues Other COVID Protections

New COVID-19 Workplace Standards Adopted in California

Responding to intense criticism for failure to coordinate with other state and national guidance, California’s Occupational Safety and Health Standards Board (OSHSB) reversed course and adopted new proposed COVID-related workplace regulations at its June 17 meeting. California’s Office of Governor issued an Executive Order implementing them the same day.

The result: California has a new set of COVID workplace regulations effective immediately. The new regulations can be viewed here.

The standards do not apply to workers who have no contact with other persons or who work remotely at locations of their choice. They also do not apply to locations covered by the Aerosol Transmissible Diseases standard (such as hospitals, outpatient facilities, group care, public health, and law enforcement).

A guide to the revisions was published prior to the OSHAB meeting (view the guidance here). The Division of Occupational Safety and Health (DOSH or “Cal-OSHA”) also revised its Frequently Asked Questions, which can be viewed and will be updated here. These resources provide the best agency-generated guide to workplace COVID-19 requirements.

Summary of Standards

1. Physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.

2. Fully vaccinated employees do not need to wear face coverings except for certain situations during outbreaks and in settings where the California Department of Public Health requires them (such as public transit, schools, childcare, healthcare settings, correctional facilities, and shelters, see here).

3. Employees are not required to wear face coverings when outdoors regardless of vaccination status except for certain employees during outbreaks.

4. Employees who are not fully vaccinated must wear face coverings indoors and in vehicles, and the employer must provide face coverings at no charge.

5. Fully vaccinated employees may request face coverings at no cost from the employer and wear them, even when not required, when feasible.

6. Employees who are not fully vaccinated may request respirators (rather than “face coverings”) at no cost. “Respirator” is more protective than “face covering,” requiring an N95 or better device. Cal-OSHA will not immediate cite employers who cannot obtain N95 or better respirators so long as they are trying in good faith to get them.

7. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.

8. Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.

9. Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.

10. Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments (which can be viewed here).

11. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems. (Employers should document this evaluation.)

Additional Considerations

Employers should continue following requirements that have not changed such as implementing a COVID-19 Prevention Program, notifying employees of potential exposures and offering testing in some situations, providing COVID-related training to employees, and excluding unvaccinated employees who experience a “close contact” at work. Businesses should also review and remain aware of additional requirements during workplace “outbreaks.”

Some other important aspects include:

· “Face coverings” include surgical masks, medical procedure masks, respirators, or “a tightly woven fabric or non-woven material of at least two layers.” They must cover both nose and mouth and do not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.

· “Fully vaccinated” means the employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.

· Unvaccinated employees who cannot wear an approved face covering due to a medical condition or disability must wear “an effective non-restrictive alternative, such as a face shield with a drape on the bottom” if possible.

· Unvaccinated employees who fall into an exemption and cannot wear a face covering or alternative, and do not maintain physical distancing, must be tested weekly at the employer’s expense.

Finally, the revisions do not interfere with other state and local requirements that are more protective such as Santa Clara County’s current mask and vaccine status verification requirements. (See these here.) All businesses should continue monitoring their local jurisdictions and any additional requirements applicable to their locations.

We will continue to monitor developments in the coming days. Employers should check Cal-OSHA resources frequently to stay abreast of daily developments and additional guidance as it is published.