The International’s Legal Department and Occupational Safety and Health Office have been helping locals exercise their right to access information about cases of COVID-19 in the workplaces they represent.
Unions have a right under the National Labor Relations Act (NLRA) to request information regarding conditions of employment. Unions are entitled to all information relevant to the union’s ability to represent workers, including basic information about risk levels at a particular union shop, such as whether workers have tested positive for COVID-19.
If an employer refuses to provide information and pushes back, the union can file an unfair labor practice charge at the National Labor Relations Board (NLRB) alleging that the company is violating NLRA section 8(a)(5), its duty to bargain in good faith. Charging party unions should also request injunctive (10(j)) relief, which is available when delay will render the outcome meaningless.
Below are some guidelines, as well as sample information request letter, to help locals access information about whether workers have tested positive or been exposed to the COVID-19 coronavirus.
Medical Information and Privacy Concerns
Health Insurance Portability and Accountability Act (HIPAA)
- HIPAA is not a general privacy protection for employers. It only applies to employers that are health care providers or insurance companies and that electronically transmit medical information. HIPAA prevents these employers from disclosing information that could be used to identify a particular patient and their injury or illness, and any care received.
- Plants with in-house medical clinics may be subject to HIPAA, but usually are not. If a plant argues it is subject to HIPAA, ask them to explain why.
- Where an employer provides health care, it can still disclose any patient information that it keeps in its role as an employer (such as records in Human Resources files), and not in its role as a health care provider.
- All employers can disclose medical data if they remove information that could be used to identify individual patients, such as names, contact information, dates of accidents and treatment, account and record numbers, photos, or other unique identifying information. The union has a right to this data.
- All employers can disclose general or statistical information, such as how many workers visited the clinic in a certain time frame, what injuries/illnesses they most complained of, what treatment the clinic generally provided, and what the treatment protocols are for each type of injury or illness.
- In limited situations, the company may correctly assert that names are confidential. However, the union can agree to keep the information confidential or only share with those who “need to know.” Remember, the union is an equal bargaining partner with the employer and has just as much right as any employer representative to discuss contingency plans for emergencies such as COVID-19.
Americans with Disabilities Act (ADA)
- The NLRB has recognized that unions have a duty to help negotiate accommodations for disabled workers under the ADA. Because COVID-19 is an ADA-covered disability, unions are entitled to specific information about employee diagnoses.
- While employers may not have to disclose the entire contents of an employee’s medical file and may assert some confidentiality restrictions, they generally do have the duty to provide information that helps the union represent its membership. See Roseburg Forest Products Co., 331 NLRB 999 (2000).
Tips for Information Requests
- Most requests about terms and conditions of employment are considered relevant. However, the union must provide a reason why it thinks the information will be useful in representing its members. Usually, if the union includes a request to bargain with its request for information and explains why they want to bargain over the issue, companies will be hard-pressed to justify a denial.
- You can request specific documents, summaries or statistics, or even answers to factual questions.
- Employers must respond within a “reasonable” amount of time, given the volume and complexity of the information requested, as well as the effect of a delay on the union. Fifteen days is a general guideline for responses.
- If the employer objects to the request or raises concerns, it is obligated to bargain with the union about its concerns and the method for disclosing the requested information. Failure to do so may be an unfair labor practice.
- If the union wishes to file an unfair labor practice charge against the employer for unreasonably delaying, denying or ignoring its request, the union should not also file a grievance, as the NLRB will defer the unfair labor practice charge until the grievance is resolved. If the NLRB issues a complaint, it can order the employer to provide the requested information and post a notice.
Sample Health and Safety Information Request
Dear [COMPANY]:
The UFCW is committed to ensuring the health and safety of all our members. During this pandemic, it is critical that the union have all information necessary to effectively negotiate members’ terms and conditions of employment.
The National Labor Relations Act entitles unions to all information necessary to represent members. This includes any and all information that will allow the union to negotiate a healthier and safer working environment.
Unions also have a duty to help negotiate reasonable accommodations under the Americans with Disabilities Act (ADA). The National Labor Relations Board recognized that unions are entitled to medical information that will allow them to ensure employees’ health and safety, and secure ADA accommodations.
Please provide the following information:
- Any and all of [COMPANY’S] COVID-19 protocol, related updated policies and planning documents (please treat this as an ongoing request for updated documents);
- For any employees who test positive for COVID-19:
- name
- job title
- last shift worked
- last location worked
- work location for the last two weeks
- all employees’ work schedules; and
- all payroll logs.
Please provide this information no later than close of business tomorrow [OR SOME OTHER REASONABLE TIMEFRAME]. The union also is available to meet and discuss the company’s plans [INSERT AVAILABILITY]. We appreciate your time and attention to this urgent matter.
Sincerely,
[LOCAL UNION]
Any questions regarding the right of locals to access health and safety information from employers should be addressed to Sarai King in the Legal Department at sking@ufcw.org or Robyn Robbins in the Occupational Safety and Health Office at rrobbins@ufcw.org.