General Counsel Response to COVID Training
This document, along with the other actions UPRR has taken regarding COVID-19, has been a topic of some discussion, which has included counsel for BLET.
For the most part, it appears that UPRR is attempting to follow the CDC guidelines, which is what we have been asking the carriers to do to protect employees. Generally, the institution of safety rules would fall within the purview of management’s authority. Overall, it would appear that UPRR has not gone beyond any of the guidance being provided by the CDC or DOL. I would note that the version you provided may not be the most current version. The version you have states that the “[f]ailure to follow these guidelines can result in disciplinary action, up to and including termination. . . “ The more recent version replaces that statement with, “[t]he intentional disregard of these guide lines may result in disciplinary action . . . “ Requiring actual intent would appear to soften the application of discipline. If the Committees find that there are statements that need clarity, I would suggest approaching the carrier as a group seeking a response. Failing resolution, a single arbitration on an issue may be the best path so that there is a uniform application.
With regard to signing or checking all the boxes, if an employee refused to do so, they may well be charged with insubordination. That would have to be arbitrated in the normal course. As noted below, there does not appear to be any bar to a carrier asking certain COVID-19 related questions. Nor would this requirement be something that could generate anything other than an arbitrable issue under Consolidated Rail Corp. v. RLEA, 491 US 299 (1989).
The issue of discipline does raise some ancillary questions. Initially, for example, whether a person could be disciplined for failing to cover a sneeze may be over the line in some instances, but would require an analysis of the facts of that specific situation. Further, this also intersects with the carrier’s availability policy. As UPRR has over 500 employees, employees are not covered by the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act. However there may be an option to take leave under the Family and Medical Leave Act (“FMLA”). Under FMLA, an employee or family member must have a serious health condition, which is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider. The DOL, through its general guidance entitled “ COVID-19 and the Family and Medical Leave Act Questions and Answers,” has advised that COVID-19 can create a serious health condition as defined by the Act. The DOL encourages employers to support workers who are ill with COVID-19 or have a family member ill with COVID-19 by urging them to stay home and considering flexible leave policies for these employees. FMLA will likely not cover employees who choose to stay home to avoid contracting COVID-19, but should cover those who become incapacitated by it.
Disciplinary action also raises a potential issue under the ADA. Although the EEOC guidance document is not exceedingly clear, a March 27, 2020 EEOC webinar answered questions related to the COVID-19 pandemic. One question posed the following scenario: “What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature, or refuses to answer questions about whether he has COVID-19, or symptoms associated with COVID-19, or has been tested for COVID-19?” The EEOC’s position is that the ADA allows an employer to bar an employee from physical presence in the workplace for refusing to answer questions related to COVID-19 symptoms or refusal to have his/her temperature taken. The Commission did not discuss, what, if any other discipline could be imposed.
Trusting this answers your inquiry
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