Can COVID-19 change my contract?

Can my employer make unilateral changes to my work schedule in response to the COVID-19 crisis?

April 2, 2020
[NOTE: Numerous WPPA members have contacted us to pose questions on this issue. While the following guidance helps explain the general state of the law on this topic, members are encouraged to contact their business agents in order to ensure that a thorough analysis is conducted.]
In Wisconsin, the Municipal Employment Relations Act (MERA) requires both unions and employers to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally under MERA, employers who make unilateral changes in violation of the collective bargaining agreement can face grievances and arbitration. Likewise, employers that make unilateral changes to the contract and refuse to bargain with regard to those changes may also be subject to a prohibited practice complaint.
Nonetheless, collective bargaining agreements sometimes contain provisions that give employers greater flexibility in determining work assignments, scheduling, and layoffs under certain circumstances. No two collective bargaining agreements are the same, so the first place to look in evaluating an employer’s authority to exercise any flexibility on these issues is your contract. It may contain an “emergency” clause or similar provision that, when read together with the rest of the contract, relieves the parties from performing their contractual obligations when certain events occur that are beyond their control.
Additionally, while the collective bargaining agreement may specifically reserve the right of the employer to make changes to scheduling, the parties may have already negotiated the impact of such scheduling changes by requiring the employer to pay its employees overtime for hours worked outside of their normal or regular shifts. Depending upon the circumstances, a contract’s overtime language may still control—even though the employer can make the schedule change. Whether the current coronavirus pandemic triggers the emergency clause in a contract, and the effect of that clause on the contract as a whole, can vary significantly depending upon the specific situation facing an agency. 
Arbitrators have recognized that there are times when an employer may have the power to address emergencies that develop as a result of factors outside of its control, and that in such a case, an employer should not be penalized for taking careful steps to cope with unforeseen conditions—even if it results in a contractual violation. In this vein, the following limits and standards have been applied to assess these situations:
  1. Management must not be directly responsible for the emergency;
  2. The emergency must involve a situation which threatens to materially impair operations;
  3. The emergency must be of limited duration; and
  4. Any violation or suspension of contractual agreements must be unavoidable and limited only to the duration of the emergency.
Some emergency situations necessitate quick, immediate, and decisive action. Others can be anticipated and discussed over a period of a few days, such as when the actions being implemented by an employer will occur in a matter of days—as opposed to seconds. In other words, some emergencies can be addressed without violating a contract at all, whereas others can be so significant that violating a contract is required in order to address the specific problems at-hand.
In evaluating cases involving unilateral scheduling changes, arbitrators will also consider how an employer handled the situation with the union. As one arbitrator explained it, an employer’s actions will be construed using a “rule of reason.” Put another way, arbitrators will not only consider the severity of the emergency and the employer’s need to address that emergency by violating the contract, specific attention will also be paid to whether the manner by which the employer notified the union of the need to depart from the terms of the applicable contract was reasonable. Did the employer provide the union with advanced notice? Did the employer indicate that time is of the essence and that an immediate need for a change from the contract exists? These are the types of questions one can ask to assess whether employers’ actions are reasonable, and the answers to these questions can serve as important evidence in a dispute.
As this update demonstrates, determining the appropriate union response to these situations requires a detailed analysis of the specific facts and circumstances surrounding an employer‘s desire to use the COVID-19 crisis as a basis for violating the contract. They also often require an assessment of the local political landscape as well, which is not addressed in this update. For all of these reasons, WPPA members are strongly encouraged to contact us as soon as possible. 
Thank you and be safe.