Arbitrating 'Just Cause' for Employee Discipline and Discharge in the Era of Covid-19

• Author: Alyson Raphael
• Position: J.D., Georgetown University Law Center (expected May 2022); M.A., Trinity Washington University (2018)
• Pages: 1237-1260

Arbitrating “Just Cause” for Employee Discipline

and Discharge in the Era of Covid-19

ALYSON RAPHAEL*

INTRODUCTION

The recent spread of the novel coronavirus (Covid-19) in the United States has

led to economic recession, widespread industry shutdowns, and disruption in the

lives of millions of American workers.

1

As of December 23, 2020 more than 18

million cases of Covid-19 have been reported in the United States.

2

From mid-

March to mid-December of 2020, more than 71 million Americans filed for

unemployment insurance.

3

After exceptionally high spikes of unemployment in the initial response to the

outbreak,

4

job security for many workers remains uncertain.

5

So too does work-

place safety. Many Americans are fearful of returning to schools, shops, and offi-

ces where there is likelihood of infection,

6

yet may be anxious about losing their

* J.D., Georgetown University Law Center (expected May 2022); M.A., Trinity Washington University

(2018); B.A., University of Michigan (2014). © 2021, Alyson D. Raphael. I would like to thank Professor

James C. Oldham for his support in the Fall 2020 Labor Arbitration Seminar.

1. See James K. Jackson, Martin A. Weiss, Andres B. Schwarzenberg, Rebecca M. Nelson, Karen M. Sutter

& Michael D. Sutherland, Global Economic Effects of COVID-19, CONG. RSCH. SERV. 1 (updated Dec. 23,

2020), https://fas.org/sgp/crs/row/R46270.pdf [https://perma.cc/KC6X-S3AK] [hereinafter Global Economic

Effects of Covid-19].

2. See Johns Hopkins University & Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/

data/cumulative-cases [https://perma.cc/P75C-44BC] (last visited Dec. 23, 2020). The death count in the

United States for Covid-19 related illness during this same time period had surpassed 300,000. Id.

3. Global Economic Effects of Covid-19, supra note 1, at 5.

4. See, e.g., Heather Long & Andrew Van Dam, U.S. Unemployment Rate Soars to 14.7 Percent, the Worst

Since the Depression Era, THE WASHINGTON POST (May 8, 2020), https://www.washingtonpost.com/business/

2020/05/08/april-2020-jobs-report/, [https://perma.cc/TWJ8-QBUF]. Many workers have since been reinstated

and rates have declined to roughly 7% as of October 2020. Bureau of Labor Statistics., U.S. Dep’t of Labor,

Civilian Unemployment Rate, https://www.bls.gov/charts/employment-situation/civilian-unemployment-rate.

htm# [https://perma.cc/3DKS-RTZG] (last visited Dec. 23, 2020).

5. A recent study has connected job insecurity and financial concern during the Covid-19 pandemic with

increased symptoms of depression and anxiety. Jenna M. Wilson, Jerin Lee, Holly N. Fitzgerald, Benjamin

Oosterhoff, Baris�Sevi & Natalie J. Shook, Job Insecurity and Financial Concern During the COVID-19

Pandemic Are Associated With Worse Mental Health, J. OCCUPATIONAL & ENVTL. MED. 62 (July 2020).

6. See, e.g., Alexa Lardieri, Majority of Americans Worry About Bringing Coronavirus Home From Work,

Poll Finds, U.S. NEWS & WORLD REP. (May 15, 2020), https://www.usnews.com/news/national-news/articles/

2020-05-15/majority-of-americans-worry-about-bringing-coronavirus-home-from-work-poll-finds [https://perma.

cc/N3EX-SF3Q]; Abha Bhattarai, ‘It Feels Like a War Zone’: As More of Them Die, Grocery Workers

Increasingly Fear Showing up at Work, THE WASHINGTON POST (April 12, 2020), https://www.washingtonpost.

com/business/2020/04/12/grocery-worker-fear-death-coronavirus/ [https://perma.cc/3FL2-VF6F].

1237

jobs or benefits because of refusal to work.

7

Others are uneasy about applying or

enforcing workplace face mask policies,

8

or wonder whether they will be able to

take extended leave for illness, to take care of sick family members, or for lack of

childcare while many schools have moved to online learning for the duration of

the declared pandemic.

9

There are legal protections for workers affected by Covid-19.

10

Beyond the

terms of a collective bargaining agreement, employees may look to Family and

Medical Leave Act (“FMLA”)

11

recently expanded by the Families First

Coronavirus Response Act (“FFCRA”),

12

the Occupational Safety and Health

Act (“OSH Act”),

13

section 502 of the Labor Management Relations Act

(“LMRA”),

14

and section 7 of the National Labor Relations Act (“NLRA”),

15

among new Covid-19 specific rulings and state laws for relief. As the pandemic

continues, more laws are likely to go into effect,

16

and many courts have already

seen an uptick in pandemic-related labor and employment litigation.

17

Laws

alone, however, may be insufficient to quash public fears of the virus.

7. See Jack Healy, Workers Fearful of the Coronavirus Are Getting Fired and Losing Their Benefits, THE

NEW YORK TIMES (June 4, 2020), https://www.nytimes.com/2020/06/04/us/virus-unemployment-fired.html

[https://perma.cc/LP7M-6RAA].

8. See Alejandro De La Garza, ’We All Worry About it.’ Grocery Workers Fear Confrontations With

Shoppers Over Mask Rules, TIME (May 26, 2020), https://time.com/5841124/grocery-workers-masks/ [https://

perma.cc/6KWA-C3YB].

9. See, e.g., Olga Khazan, A Hidden Covid-19 Risk Factor: Your Boss, THE ATLANTIC (June 1, 2020),

https://www.theatlantic.com/health/archive/2020/06/sick-leave-covid-time-off/612361/ [https://perma.cc/

6YD4-TQVS]; Deb Perelman, In the Covid-19 Economy, You Can Have a Kid or a Job. You Can’t Have Both,

THE NEW YORK TIMES (July 2, 2020), https://www.nytimes.com/2020/07/02/business/covid-economy-parents-

kids-career-homeschooling.html [https://perma.cc/UT4M-RJ9K].

10. See, e.g., H. Dennis Beaver, Covid-19 at Work: Your Legal Rights and Responsibilities, KIPLINGER

(May 29, 2020), https://www.kiplinger.com/article/business/t012-c032-s014-covid-19-at-work-your-legal-

rights.html [https://perma.cc/E8H6-C77B].

11. 29 U.S.C. § 2601.

12. Pub. L. No. 116-127. The FFCRA is effective for qualifying employees from April 1, 2020 to December

31, 2020. See U.S. Dep’t of Labor, Families First Coronavirus Response Act: Employer Paid Leave

Requirements, https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave [https://perma.cc/L4Y9-

ZYVH] (last visited Dec. 23, 2020).

13. 29 U.S.C. § 651.

14. 29 U.S.C. § 143.

15. 29 U.S.C. § 157.

16. Note that at the time of this writing, the results of the 2020 election are likely to heavily influence the

amount of new Covid-19 regulations that will be promulgated under the incoming Biden administration. See,

e.g., Amy Goldstein, Biden Lays Out Plan to Combat Covid in First 100 Days, Including Requiring Masks on

Interstate Buses, Trains, THE WASHINGTON POST (Dec. 8, 2020), https://www.washingtonpost.com/health/

biden-covid-100-days-plan/2020/12/08/16e0a47e-3965-11eb-98c4-25dc9f4987e8_story.html [https://perma.

cc/G2HQ-RASW].

17. See, e.g., The First Wave of Covid-19 Workplace Lawsuits is Here, ADVISORY BOARD, https://www.

advisory.com/daily-briefing/2020/08/03/covid-lawsuits [https://perma.cc/2YF2-H7NK] (last visited Sept. 23,

2020); Tom Spiggle, The Coronavirus is Causing More Employment Lawsuits, FORBES, https://www.forbes.

com/sites/tomspiggle/2020/09/22/the-coronavirus-is-causing-more-employment-lawsuits/#75e9d6234c78 [https://

perma.cc/GQ6G-8R94] (last visited Sept. 23, 2020).

1238 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1237