The NLRB has recently signaled two potential changes to standards used to determine whether two entities are joint employers and to determine whether micro-units are permissible bargaining units under the Act. 

The impact of a joint-employer finding is that a joint employer may have a duty to participate in collective bargaining for the other entity’s employees; may jointly or independently be responsible for ULPs committed by either employer; may be subject to accretion; and may face a greater likelihood that picketing by the employees would be lawful.

The standard for determining whether two entities are joint employers has been revised several times over the past decade, most recently evolving when the Board decided Browning-Ferris Industries, 362 NLRB 1599 (2015).

​Prior to Browning-Ferris, an entity could be held a joint employer only if it exercised “direct and immediate” control over employment terms and conditions in more than a limited and routine manner. In Browning-Ferris, the Board relaxed that standard and extended joint employer status even to entities possessing an ability to control employment terms and conditions indirectly and even if the entity never actually exercised that ability.

In late 2017, the Board decided Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), which overruled Browning-Ferris and reinstated the earlier, more exacting joint employment standard previously. Just two months later, the Board vacated Hy-Brand due to alleged conflicts of interest by one of the participating Board members and reinstated Browning-Ferris.

Three months later, in May 2018, the Board announced it would consider revising the joint employer standard, and in September 2018 it published a Notice of Proposed Rulemaking. In February 2020, the Board confirmed that it would replace the Browning-Ferris standard with a new rule, effective April 27, 2020. The new rule provided that a joint employer relationship requires the purported joint employer “possess and exercise. . .substantial direct and immediate control” over one or more “essential terms and conditions of employment” of another employer’s employees, such that the “entity meaningfully affects matters relating to the employment of those employees.”
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On December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the joint employer standard again. It has been widely predicted that the Board will revert to the standard that previously existed, which does not require the purported joint employer actually exercise control over employment conditions so long as the company possesses such authority. 

By definition, a micro-unit is simply a small group of employees that unionizes but does not represent a majority of an employer’s workforce. Whether a micro-unit is permissible under the Act has fluctuated over the years.

In 2011, the Board lowered the bar for unions to organize smaller groups into bargaining units despite decades of precedent holding otherwise. In 2017, the Board restored the pre-2011 standard for evaluating the appropriateness of a petitioned-for bargaining unit.
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On December 7, 2021, in American Steel Construction, 371 NLRB No. 41 (2021), the Board invited public input as to whether it should reconsider that standard again and possibly revert back to the 2011 rule making it easier for unions to organize employees into micro-units. 

In the underlying case, Local 25, International Association of Bridge Structural, Ornamental, and Reinforcing Iron Workers, AFL-CIO, filed a petition on November 18, 2020, seeking to represent a bargaining unit composed of the full- and regular-time journeymen and apprentice field ironworkers employed by American Steel Construction.

Citing PCC Structural, Inc., 365 NLRB No. 160 (2017) and The Boeing Company, 368 NLRB No. 67 (2019), the Region held that the community of interest shared among employees encompassed by the proposed unit was not sufficiently distinct from the interests of other employees excluded from the petitioned-for unit.

The Board noted that, prior to PCC Structurals, the Board’s Specialty Healthcare & Rehabilitation Center of Mobile opinion set out a more permissive standard for determining the appropriateness of a petitioned-for bargaining unit, where the standard was whether the employees encompassed by the unit were readily identifiable as a group and shared a community of interest. 

​On December 14, 2021, the EEOC issued new guidance on COVID-19 and the Americans with Disabilities Act of 1990, as amended (ADA). The guidance addresses whether COVID-19 is considered a disability under the Act and what accommodations, if any, employers must provide qualified employees.
 
As background, Title I of the ADA applies to private employers with 15 or more employees and to state and local government employers, employment agencies, and labor unions and prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
 
In its new guidance, the EEOC explained that the ADA’s three-part definition of “disability” applies to COVID-19 in the same way that it applies to any other medical condition. Thus, a person can qualify as a person with a disability in one of three ways:

1. Actual Disability: the person has a physical or mental impairment that substantially limits a major life activity (i.e., walking, talking, seeing, hearing, learning, or operation of a major bodily function);
2. Record of a Disability: the person has a history or “record of” an actual disability (such as cancer that is in remission); or
3. Regarded as an Individual with a Disability: the person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

A person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether COVID-19 substantially limits a major life activity. A person with a mild response to COVID-19 or who is asymptomatic does not have an actual disability within the meaning of the ADA.
 
A physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 is a physiological condition affecting one or more body systems and is thus a “physical or mental impairment” under the ADA.
 
“Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and activities in which someone engages, such as walking or concentrating. COVID-19 may affect functions of the immune system, special sense organs for smell and taste, digestive, neurological, brain, respiratory, circulatory, cardiovascular functions, or the operation of an individual organ. COVID-19 may also affect eating, walking, breathing, concentrating, thinking, interacting with others, or caring for oneself. COVID-19 therefore may affect a major life activity if it affects one or multiple of these functions or activities.
 
“Substantially limits” is construed broadly and COVID-19 need not prevent or significantly or severely restrict a person from performing a major life activity to be considered substantially limiting under Title I of the ADA. Nor do symptoms need to last for any particular length of time to be substantially limiting.
 
However, COVID-19 is not always an actual disability under the ADA, and the determination must be made on a case-by-case basis. 

​A person with COVID-19 may have a record of a disability if the person has a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on an individualized assessment. 

A person with COVID-19 may be regarded as an individual with a disability if the person is subjected to an adverse action (fired, not hired, harassed, etc.) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has an impairment, subject to the caveat identified above.
 
However, it is possible that an employer who has taken an adverse action based on an impairment did not engage in unlawful discrimination under the ADA, because an individual still needs to be qualified for the job held or desired and the employer has certain defenses. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from entering the workplace during the CDC-recommended isolation period due to the risk of substantial harm to others. 

​In some cases, even if COVID-19 does not qualify as an ADA-disability, an individual’s COVID-19 may result in impairments that are themselves disabilities under the ADA. In other cases, COVID-19 may worsen an individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting.  

To request a reasonable accommodation, individuals must meet the “actual” or “record of” definitions of disability. Furthermore, individuals are not entitled to an accommodation unless their disability requires it and an employer is not obligated to provide an accommodation that would pose an undue hardship.
 
If a disability or need for an accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation, which is oftentimes only the individual’s diagnosis and any restrictions or limitations. The employer may also ask about whether alternative accommodations would be effective. If an employee does not cooperate in providing the requested supporting medical information, the employer can lawfully deny the accommodation request. Of course, employers may choose to provide accommodations beyond what the ADA mandates.