While the right to strike is protected by the National Labor Relations Act (NLRA), the U.S. Supreme Court decided that a union could be sued where it called for a strike without taking steps to prevent harm to the property of the employer. The Wage and Hour Division of the U.S. Department of Labor issued an opinion letter clarifying the impact of holidays when calculating leave taken under the Family and Medical Leave Act (FMLA). The U.S. Department of Homeland Security and the U.S. Immigration and Customs Enforcement announced that employers will have until August 30^th to undertake a physical examination of identity and employment eligibility documents required by the I-9 form for those individuals hired since March 20, 2020, who have only received a virtual or remote examination of their eligibility documents. The Centers for Medicare and Medicaid Services (CMS) published a final rule ending the COVID-19 vaccine mandate for employees of health care facilities that participate in Medicare and Medicaid.

Supreme Court Limits Right to Strike – The United States Supreme Court, in an 8 – 1 decision ruled that a union that failed to take reasonable precautions during a work stoppage to prevent damage to an employers’ property could be sued. The National Labor Relations Act (NLRA) protects the right to strike, but the right, according to the Supreme Court, is not absolute. Justice Barrett who wrote the majority decision in the case of Glacier Northwest, Inc. v. Teamsters stated, “In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into Glacier’s delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to Glacier’s property.”

Glacier Northwest sells concrete in Washington State that is highly perishable and can be preserved in ready-mix trucks only for a limited time. If the concrete remains in the rotating truck for too long, it will harden resulting in significant damage to the trucks. A local of the International Brotherhood of Teamsters was the exclusive bargaining representative for the truck drivers. The collective bargaining agreement between the parties expired in the summer of 2017 and the parties were unable to resolve their differences. On August 11^th, an agent of the union signaled for a work stoppage while the company was mixing concrete and making deliveries. The company instructed the drivers to finish in progress deliveries, but at least 16 drivers returned with fully loaded trucks. A majority of the trucks were abandoned without informing the employer. Non-striking employees were able to offload the concrete thus preventing damage to the trucks. However, the concrete hardened and could not be used.

The company, claiming the union intentionally destroyed the concrete, sued the union for damages in Washington state court. The Washington Supreme Court ruled in favor of the union since it believed that the NLRA preempted the state law claims because the company’s loss was “incidental to a strike arguably protected by federal law.” The Supreme Court’s majority opinion noted that the National Labor Relations Board (NLRB) which administers the NLRA, has taken the position that the Act does not shield strikers who fail to take reasonable precautions to protect their employer’s property from “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.” Justice Barrett stated, “Because the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.”

WHD Clarifies Impact of Holiday when Calculating FMLA Leave – The Wage and Hour Division (WHD) issued an opinion letter in response to a request for clarification on how to calculate the amount of leave used when an employee takes leave under the Family and Medical Leave Act (FMLA) during a week with a holiday. The FMLA allows eligible employees to take up to 12 weeks of qualifying leave in a twelve month period. According to the WHD, under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. The FMLA regulations provide that if an employee is taking a full workweek of FMLA leave during a week when a holiday falls, the entire week would be counted as FMLA leave. However, “when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day;”

The opinion letter includes the following clarifying example: An employee works Monday through Friday and only needs FMLA leave for Wednesday through Friday. If there is a holiday on a Friday and the employee is not required to work on the holiday, the employee would use only 2/5 of a week of FMLA leave (for Wednesday and Thursday) since the employee is not required to work on the holiday. 

End of COVID-19 I-9 Flexibilities Announced – The U.S. Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE) stated that employers will have until August 30, 2023, “to perform all required physical examination of identity and employment eligibility documents for individuals hired on or after March 20, 2020, who have only received a virtual or remote examination” of their eligibility documents. In March 2020, ICE announced that due to COVID-19, it was allowing remote inspection of required employment eligibility documents and deferring the requirement that employers review them in the employees’ physical presence. 

The COVID-19 flexibilities will expire on July 31, 2023, and DHS and ICE will give employers 30 additional days until August 30, 2023, to ensure that the required physical inspection of identity and employment eligibility documents is completed. In August 2022, DHS issued a proposed rule that would allow alternative procedures for the examination of identity and employment eligibility documents and the public comment period ended in October 2022. DHS noted that it is currently reviewing public comments with a final rule expected later this year.

CMS Ends COVID-19 Vaccine Mandate – The Centers for Medicare and Medicaid Services (CMS), which is part of the Department of Health and Human Services (HHS) published a final rule on June 5^th ending the COVID-19 vaccine mandate for employees of health care facilities that participate in Medicare and Medicaid. The rule becomes effective on August 4^th.  CMS had stopped enforcing the requirement on May 11^th, the day the COVID-19 public health emergency ended. CMS stated in the rule that the risks targeted by the staff vaccination requirement have been mostly addressed, so they are “aligning our approach with those for other infectious diseases, specifically influenza. Accordingly, CMS intends to encourage ongoing COVID–19 vaccination through its quality reporting and value-based incentive programs in the near future.” Educate and offer provisions remain in effect and require long-term care facilities to continue to provide COVID-19 vaccines and vaccination education to staff, residents, and clients.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at [email protected].