The Families First Coronavirus Response Act (FFCRA) was signed into law by President Trump on March 18, 2020. The act provides relief to employees impacted by the COVID-19 pandemic. It requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
One aspect of the FFCRA that has significant implications for collective bargaining agreements (CBAs) is the exemption for certain employers. Specifically, the Department of Labor has stated that small businesses with fewer than 50 employees may be exempted from providing paid sick leave or expanded family and medical leave if providing such leave would jeopardize the viability of the business as a going concern.
For employers with CBAs, this exemption may not be straightforward. CBAs often contain provisions related to sick leave and other types of leave. In some cases, CBAs may specify that all employees are entitled to a certain number of sick days or other types of leave, regardless of the size of the employer.
In these cases, employers may need to engage in negotiations with the union to modify the CBA to accommodate the exemption under the FFCRA. This could be a complex and time-consuming process, as unions are often resistant to changes to existing CBAs. Employers may need to provide evidence to the union that the exemption is necessary to maintain the viability of the business.
Employers should also be aware that any modifications to the CBA must be made in accordance with the National Labor Relations Act (NLRA). This means that the employer must provide notice to the union and engage in good-faith negotiations before implementing any changes.
In addition, employers should ensure that any modifications to the CBA do not violate the FFCRA or other applicable laws. For example, employers cannot modify a CBA to exclude certain employees from the paid sick leave or expanded family and medical leave requirements based on their race, color, religion, sex, national origin, age, or disability.
In summary, the exemption for small businesses under the FFCRA can create challenges for employers with CBAs. Employers must engage in negotiations with the union to modify the CBA, comply with the terms of the NLRA, and ensure that any modifications do not violate the FFCRA or other applicable laws. Employers should consult with an experienced labor and employment attorney to navigate these issues and ensure compliance with all applicable laws.