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Supplemental Bulletin for Community College Districts: Shifting to Online Instruction in Response to the Coronavirus (COVID-19) Outbreak
LCW recently issued two bulletins for community college districts on responding to the coronavirus outbreak—one focusing on employment issues, the other on student issues. As this dynamic situation continues to evolve, a growing number of community college districts are considering shifting temporarily to an on-line or other distance learning modality for all or most classes. This bulletin flags the labor relations obligations that decision implicates.
As an initial matter, changing an employee’s assignment from classroom-based instruction to online instruction affects the terms and conditions of employment. Therefore, such a change will be subject to negotiation unless a defense applies that permits implementation without first negotiating the change.
As we advised in our initial bulletin on employee-related issues, business necessity constitutes a defense under the Education Employment Rights Act (EERA) that may permit implementation of a change to working conditions without first negotiating the change. However, in order to justify unilateral action, the necessity must be the unavoidable result of a sudden change in circumstances beyond the employer’s control. Further, the timing of the emergency must preclude the opportunity for negotiation, and there must be no alternative course of action available to the employer.
As applied in the context of addressing health and safety issues presented by the coronavirus outbreak, we suggest the following approach:
1.) Review your applicable collective bargaining agreement (CBA) management rights clauses for any negotiated authority to act in the case of emergency. If such language exists, determine if an emergency exists as defined in the CBA; and if so, what management authority the parties negotiated in the case of an emergency. If, for example, your management rights clause permits unilateral action on condition that the district terminates the action as soon as the emergency subsides, negotiation of emergency measures is not required.
2.) If your CBA does not address management rights during an emergency, determine if the current situation at your District meets the business necessity threshold under the EERA. Here, factors that may support asserting a business necessity include:
- That the Governor has declared a statewide emergency;
- Any local city or county directives regarding closures of public facilities, limits on public gatherings, etc.; and
- Any confirmed diagnoses within your college community.
We suggest conferring with legal counsel in evaluating whether the situation meets the EERA business necessity standard, as PERB decisions have established a high bar for finding a business necessity.
3.) If you conclude that a business necessity does exist, you may implement online instruction before negotiating. However, you should maintain an open line of communication with the exclusive representatives of the affected employee units, and offer to meet and confer as soon as practicable. We also suggest emphasizing the temporary nature of the action, and that the district will resume regular instruction as soon as the health and safety need for the online format has subsided.
4.) If you conclude that a business necessity does not currently exist, request to bargain the temporary shift to online instruction before implementation.