Arbitrators Dismiss Claims Alleging Unsafe or Hazardous COVID-19 Work Environment

In two grievance arbitrations handled by Thrun Law Firm, arbitrators found that Brighton Area Schools did not require its employees to work in an unsafe or hazardous environment during the 2020-21 school year. Those decisions reinforce that although some col­lective bargaining agreements (CBAs) have language requiring safe working conditions, that language does not guarantee a risk-free workplace during a pandemic.

In the first grievance, the teacher’s union alleged that the District’s Back-to-School Plan, which included in-person student learning four days per week, resulted in unsafe or hazardous conditions for employees be­cause six-foot social distancing could not be enforced. Brighton Area Schs, AAA Case No. 01-20-0015-6548 (2021). For relief, the union requested all on-line learning or an alternative schedule that required student capacity of 50% or less in each building.

As evidence of the alleged CBA violation, the union offered positive COVID-19 case numbers in the District. The union’s witnesses, however, could not explain whether the cases involved students or employees, where the individuals contracted the disease, or whether any of the positive cases were caused by a lack of social distancing.

The District explained how it balanced various interests in creating its Back-to-School Plan and safety measures, noting that its intermediate school district and county health department approved the Plan. The arbitrator found that the union failed to sustain its bur­den of demonstrating that employees were required to work in unsafe or hazardous working conditions.

In the second grievance, the arbitrator addressed whether the District’s COVID-19 Preparedness and Re­sponse Plan exposed teachers to an unsafe or hazard­ous work environment because it required them to spray desks with a cleaning solution between classes and, in some cases, wipe off the solution. Brighton Area Schs, AAA Case No. 01-20-0015-6546 (2021). As a remedy, the union requested that third-party contractors perform the cleaning.

The District presented evidence demonstrating its research in choosing the least harmful cleaning solu­tion. It also showed that having a contractor clean desks in each classroom between every class period would in­crease its contractor personnel by 1,000%, since a con­tracted person would have to be assigned permanently to every classroom.

Dismissing the union’s claim, the arbitrator found that the cleaning solution was safe for its intended use and that it did not endanger the health, safety, or well-being of teachers or students.

Although these decisions are not binding on other Michigan schools, they should provide comfort to, and support for, schools facing similar grievances.