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Management vs. State and Local Laws – Part 3

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Management vs. State and Local Laws – Part 3

Master Executive Council (MEC), Grievance Committee, Benefits Committee

This is the third in a series reporting on management’s opposition to various state and local laws, the latest developments to complex state law litigations related to these laws that are playing out in Washington and California, and what Flight Attendants can do about it.

In This Edition

  • WA Long Term Care (Cares Fund)
  • CA 2021 COVID-19 Supplemental Paid Sick Leave

WA Long Term Care (Cares Fund)

Management will unilaterally decline to initiate payroll deductions for flight crew in January 2022

The Washington Cares Fund is the nation’s first state-administered long-term care insurance program. Benefits will be funded by a 0.58% employee-paid payroll tax beginning January 1, 2022. However, Alaska Airlines management has unilaterally taken the position that the WA Cares Fund does not apply to flight crew and therefore will not initiate payroll deductions this coming January. In an email titled “Important Information About Washington’s Long-Term Care Act” (July 8, 2021), management advised all WA-domiciled Alaska Airlines Flight Attendants that flight crew may still consider pursuing a permanent one-time opt-out of the Program and all associated taxes and benefits by obtaining private long-term care insurance prior to the deadline of November 1, 2021. Currently, there is no opt-out option for any employee who becomes domiciled in (i.e., employed in) Washington after the applicable deadlines.

If management will not deduct flight crew contributions, then why bother opting out?

Flight Attendants may eventually change jobs within the Company (i.e., transfer to another position that is not classified as flight crew) or work for other employers within Washington. Additionally, the Company’s position regarding flight crew is currently untested from a legal perspective. It is entirely possible that the courts may eventually require Alaska Airlines to withhold WA Cares Fund payroll contributions on behalf of flight crew.

Grossly unfair to non-resident employees

Although all WA-domiciled flight crew would otherwise theoretically be required to contribute to the fund (except for management’s unilateral position regarding flight crew and certain state and local laws), only Washington residents may utilize Care Fund benefits. This is grossly unfair to non-resident flight crew (i.e., out of state commuters). Consequently, AFA Alaska has taken steps to join with ALPA Alaska in filing legal objections with Washington State regarding our concerns that the WA Cares Fund violates the Dormant Commerce Clause, which is inferred from Article I of the US Constitution, and the Privileges and Immunities Clause, which is derived from Article IV, Section 2 of the US Constitution. Resolution under this path could take a very long time, so this is another reason that non-resident WA-domiciled flight crew might consider opting out if possible.

Challenges with opting out

Unfortunately, it is extremely challenging to opt out unless you started applying for private insurance many, many months ago—especially if you are younger. AFA is unaware of any private insurers who are currently offering new long-term care policies. Additionally, there is a significant administrative backlog of applications with all known private insurers, so it is very concerning—and unknown—whether all pending policies will be executed prior to the November 1st deadline.

Will I be required to directly contribute to the WA Cares Fund or pay back contributions not made on my behalf?

Quite simply, it is unclear but doubtful. Again, AFA Alaska has taken steps to join with ALPA Alaska in filing legal objections with Washington State regarding our concerns that the WA Cares Fund raises due process problems insofar as the law does not specify who bears consequences for an employer’s failure to remit employee premiums or what those consequences would be. However, there is no mechanism for employees to make direct contributions to the WA Care Fund, and there is no provision in the law to recoup contributions not withheld and made by the employer.

Interestingly, Alaska Airlines management personnel from the People Team (i.e., Human Resources) have advised individual Flight Attendants who have directly inquired with them that the Company would “likely” be required to pay back the contributions owed on behalf of flight crew if Washington State came back and said that flight crew are required to pay such contributions. This is presumably under a scenario in which the State of Washington prevailed in the courts pursuant to this almost-inevitable dispute. However, Alaska Airlines management has not responded to the Association’s inquiry to confirm such guidance prior to publication of this update.

Estimated (theoretical) contributions

$25k gross annual earnings = ~$12/month | $50k gross annual earnings = ~$24/month | $75k gross annual earnings = ~$36/month | $100k gross annual earnings = ~$48/month

CA 2021 COVID-19 Supplemental Paid Sick Leave

Up to 80 paid hours for certain COVID-19 related absences from a separate employer-paid sick bank

One of the more notable temporary COVID-19 laws is California’s 2021 COVID-19 Supplemental Paid Sick Leave. The law was effective as of March 29, 2021, was retroactive to January 1, 2021, and ends soon on September 30, 2021.  It states that California employees will be paid up to 80 hours by the employer rather than through the employee’s own sick leave bank for COVID-19 related quarantines, vaccination appointments and vaccine symptoms. Click here for FAQs. Thus far, management has denied all requests from Flight Attendants to comply with the law, e.g., to pay out of the separate COVID-19 sick bank.  

Filing a claim

Any CA-domiciled Flight Attendant who has used Sick Leave for COVID-19 related absences between January 1st and September 30th should file a claim or a report of a labor law violation with the Labor Commissioner’s Office, which is the state agency charged with enforcement. Please file a claim as soon as possible, but our understanding is that the state accepts such claims for up to three years. Flight Attendants also always have the option to hire their own attorney at their own expense if so desired.

AFA Alaska representatives are here to help

Although AFA cannot represent any FAs regarding such claims, we would very much appreciate you keeping us posted on any developments. Outside counsel has already responded to some claims with very official-looking but in our opinion not entirely on point legalese. AFA Alaska representatives are more than willing to help by supplying basic information and tips, and we would cooperate with any requests from claim investigators. Do not let management’s legal tactics put you off from pressing forward with your rightful claim!

AFA Alaska Update – September 17, 2021

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In This Edition

  • Celebrating Hispanic-Latinx Heritage Month
  • PBS Subcommittee Appointment
  • Why a $5 Starbucks Card is Important to Your Contractual Rights

Celebrating Hispanic-Latinx Heritage Month

Human Rights Committee

September 15 marks the first day of Hispanic-Latinx Heritage Month in the United States.  The celebration, which is also referred to as National Hispanic Heritage Month, began as Hispanic Heritage week when it was established by legislation that was signed into law by President Lydon Johnson in 1968.  In 1988, the single week event was expanded to a month-long period to be celebrated each year from September 15 to October 15.

September 15 is of significance as it marks the anniversary of independence of the Latin American countries of Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua.  Mexico also celebrates independence on September 16, Chile on September 18, and Belize on September 21. 

Learn More About Hispanic-Latinx History

You can learn more about the accomplishments of Hispanic-Latinx Americans through some of the dedicated websites and resources below.

Hispanic-Latinx Heritage Month AFA Pins Coming in 2022

The AFA Executive Board recently passed a resolution recognizing Hispanic-Latinx Heritage Month and providing for the creation of a new diversity AFA pin in celebration.  You can read the complete text of the resolution by clicking here.  The new pin will be undergo the design and development process over the next year and will be made available in September 2022.

Questions?

If you have any questions, please contact your Local Human Rights Committee.

PBS Subcommittee Appointment

Master Executive Council (MEC)

Our Master Executive Council (MEC) conducted interviews this week for an additional PBS Subcommittee Member as previously announced in the August 6 AFA Update email.  The MEC would like to thank the candidates who demonstrated willingness to represent our Flight Attendants. After thorough consideration, the MEC has appointed SAN-based Flight Attendant Steven Patronsky to the position.

About Steve

Representing the membership and upholding contract compliance are the aspects of the work that most excites Steve about being appointed to the PBS Subcommittee. His volunteering history for AFA includes work on the Scheduling and Hotel Committees.  Steve’s recent accomplishments include completing a Master’s Program at the University of Central Florida and remodeling a 50’s era Mid-Century home in Orlando. 

About the Position

The PBS Subcommittee, part of the Scheduling Committee, works with the company and the Inflight Crew Planning Department to maintain the company’s preferential bidding system and oversee the bidding and bid award processes.  The Subcommittee represents and advocates for the MEC position in matters pertaining to bidding and the preferential bidding system.  Additional information about the position and subcommittee can be found by clicking here.

Why a $5 Starbucks Card is Important to Your Contractual Rights

Grievance Committee

In early 2020, our Grievance Committee included information in an AFA Update about a settlement agreement related to management issuing $5 Starbucks cards to ANC-based Flight Attendants for meeting an attendance goal back in 2015.  You can read the original communication from March 25, 2020 by clicking here (scroll to the Grievance Committee Update article, then the Recent Settled Grievances heading).  Due to the pandemic and other administrative issues, management is just now distributing the Starbucks card as agreed upon.

So Why Is This Important?

The issue at hand isn’t so much about the amount of the Starbucks card but rather what management did wrong.  The priority of our Grievance Committee is to ensure that management complies with our collective bargaining agreement (CBA).  In this case, management violated the CBA by awarding gift cards to a particular group of Flight Attendants for having better attendance rates than others without negotiating it with AFA.  Gift cards, which have a dollar value, are considered a form of compensation which is a negotiated part of our CBA.

If our Grievance Committee had failed to address this contractual violation, regardless of how small it may seem, it could open the door to management making other attempts to change our compensation or working conditions in violation of the CBA.  This settlement agreement protects your rights and makes all Flight Attendants equal in terms of the CBA.  Although it may only be $5 to each Flight Attendant, the overall cost to management for the settlement agreement is significant and a reminder not to violate the language in our contract.

Questions?

If you have questions about the settlement agreement or reasoning behind it, please feel free to reach out to your Local Grievance Committee.

Management vs. State and Local Laws – Part 2

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Management vs. State and Local Laws – Part 2

Master Executive Council (MEC), Grievance Committee, Benefits Committee

This is the second in a series reporting on management’s opposition to various state and local laws, the latest developments to complex state law litigations related to these laws that are playing out in Washington and California, and what Flight Attendants can do about it.

In This Edition

  • Definition of Sick Family/Sick Child
  • Applicable State Laws
  • Filing a Claim with the Appropriate Agency

Most Liberal of the Flight Attendant Domicile State Laws Definition of “Sick Family/Sick Child”

The Roberts Decision and LOA 5 Sick Family/Sick Child

AFA arbitrated Grievance No. 36-99-02-49-03 “Family Leave Benefits” in 2005, which resulted in a favorable ruling for AFA by now-deceased Arbitrator Thomas Roberts. This award, which is usually referenced as “The Roberts Decision” by AFA and management, was at least in part subsequently incorporated into the current contract via Letter of Agreement 5 “Sick Family/Sick Child”:

[W]henever the collective-bargaining agreement refers to a sick child, it is understood that this is a placeholder for “family member.” With the Association’s agreement, the Company will apply the most liberal of the laws of the states in which Flight Attendants are domiciled in determining the appropriate definition of “family member.” When this definition is determined, including any subsequent amendments pursuant to changes in the law or in the interpretation of the law, the Company will publish the definition and distribute it to the Flight Attendants.

Through arbitration and bargaining, the Company is required to apply the most liberal of the Flight Attendant domicile state laws definition of “family member” for whom a Flight Attendant may utilize sick leave to care for that individual, under what circumstances and whether Flight Attendants will receive points under the Attendance Policy for such absences.

Updated list of qualified family members for Sick Family/Sick Child (as of August 30, 2021)

“Family member” includes: • Spouse • Registered domestic partner • Child (biological, step, adopted, foster, legal ward, or registered domestic partner’s child) of any age • Parent (biological, adoptive, step, foster, parent-in-law, or registered domestic partner’s parent) • Legal guardian of the F/A, spouse, or registered domestic partner as a minor • Individual with whom the F/A has or had an in loco parentis relationship – persons in loco parentis are those with day-to-day responsibilities to care for or financially support a child, or who had such responsibility for the employee when the employee was a child • Grandparent • Grandchild • Sibling

Points for Sick Family/Sick Child (in dispute)

Generally, no points apply for time off to care for the above individuals unless the Flight Attendant does not have enough sick leave to cover the absence. See Bulletin #2021-0059 for more information about the Company’s application in these circumstances. Please note this application remains in dispute via ongoing litigation.

Applicable State Laws

Summary

✅ = Honored | ⚠ = Partially honored and/or in dispute | 🚫 = Denied

State laws that AFA believes should apply to flight crew include but are not limited to:

  • Washington
    • WA Family Care Act (WFCA) – 🚫
    • WA Paid Sick Leave (WPSL) – 🚫
    • WA Paid Family Leave (WPFL) – 🚫
    • WA Long Term Care (Cares Fund) – 🚫
  • Oregon
    • OR Family Leave Act (OFLA) – 🚫
    • OR Paid Family and Medical Leave Insurance (PFMLI) – N/A
  • California
    • CA State Disability Insurance (CASDI) – ✅
    • CA Family Rights Act (CFRA) – 🚫
    • CA Family School Partnership Act – 🚫
  • All
    • Wage statement laws: AK, WA, OR – ✅; CA = ⚠
    • Supplemental/temporary COVID-19 leave laws – 🚫

Washington

WA Family Care Act (WFCA)

  • Reference:  RCW 49.12
  • Rule(s) of Interest to FAs:  Use of accrued vacation pay to care for qualified family members under certain conditions.
  • Status:  State of WA & AFA won lawsuit in 9th Circuit Court of Appeals; however, the Company continues to appeal at state level.
  • AS Compliance: No
  • Contact Information:  Washington State Department of Labor and Industries | Mailing Address: PO Box 44000 Olympia, WA  98504-4000 | Phone:  360-902-5800 | Website:  www.lni.wa.gov –> For Workers –> File a Workplace Complaint

WA Paid Sick Leave (WPSL)

  • Reference:  Initiative 1433
  • Rule(s) of Interest to FAs: (1) Employees can use sick leave for preventative care for themselves and/or applicable family members. (2) Discipline and infractions that may lead to discipline (including Attendance Points) cannot be assessed for use of paid SL. (3) Employees can use paid SL on the 90th calendar day of employment (i.e., during FA probationary period).
  • Status:  A4A is appealing summary judgment motion in favor of State of WA & AFA.  The State of WA won in the 9th Circuit Court of Appeals; however, the Company continues to appeal.
  • AS Compliance: No
  • Contact Information: Washington State Department of Labor and Industries | Mailing Address: PO Box 44000 Olympia, WA  98504-4000 | Phone:  360-902-5800 | Website:  www.lni.wa.gov –> For Workers –> File a Workplace Complaint

WA Paid Family Leave (WPFL)

  • Reference: Builds on FMLA & RCW 50A
  • Rule(s) of Interest to FAs: WPFL is a statewide insurance program that ensures paid family leave for various situations. WPFL usually covers 12 weeks of leave, or up to 18 weeks in certain circumstances, and workers receive between $100 and $1,000 per week depending on their income.
  • Status:  No known disputes currently. – Premiums were to be deducted starting January 1, 2019, and leaves were to be allowed beginning January 1, 2020. 
  • AS Compliance: No
  • Contact Information:  Employment Security Department | Phone:  1-833-717-2273 | Email:  paidleave@esd.wa.gov | Website:paidleave.wa.gov

WA Long Term Care (Cares Fund)

  • Reference:  RCW 50B.04
  • Rule(s) of Interest to FAs:  The WA Cares Fund was created to reduce pressure on the Medicaid system. Once vested, you will be eligible to access a maximum lifetime benefit of $36,500 (adjusted for inflation) to pay for expenses associated with needing assistance with activities of daily living (ADLs). Unlike private insurance that generally requires you to be unable to do two ADLs, the WA Cares Fund requires that individuals need assistance with three ADLs to qualify. Examples of ADLs: Dressing, bathing, cognitive impairment, and other basic functions of your daily routine. Benefits are not portable or payable if you reside outside of Washington state at the time the benefit is needed.
  • Status:  No known disputes currently. – Paid for by a 0.58% tax on employee wages starting January 1, 2022, with benefits beginning in January 2025.
  • AS Compliance:  No – The Company does not intend to collect premiums.
  • Contact Information:  Washington State Department of Social and Health Services | Email:  wacaresfund@dshs.wa.gov | Website: http://www.wacaresfund.wa.gov/

Oregon

OR Family Leave Act (OFLA)

OR Paid Family and Medical Leave Insurance (OPFMLI)

  • Reference:  HB 2005​
  • Rule(s) of Interest to FAs: OPFMLI will provide 12 weeks of paid time off for various circumstances, with weekly benefits capped at $1215. The employee must have earned at least $1,000 in wages during the previous year. This leave will run concurrent with OFLA. 
  • Status: State pushing start date to January 2023 or later
  • AS Compliance:  N/A – Begins in 2023 or later, but AS will likely not follow the law.
  • Contact Information:  Oregon Employment Department | Mailing Address:  875 Union St. NE Salem, OR 97311 | Phone: 503-947-1394 | Email:  paidfamilyandmedicalleave@oregon.gov | Website: https://www.oregon.gov/employ/PFMLI/Pages/default.aspx

California

CA State Disability Insurance (CASDI)

  • Reference:  California Unemployment Insurance Code §2601 et seq.
  • Rule(s) of Interest to FAs:  Partial wage replacement for non-work disability: illness, injury and/or pregnancy. SDI contributions are paid by California workers covered by the SDI program.
  • Status:  No known disputes currently
  • AS Compliance:  Yes – Since 1987
  • Contact Information:  Employment Development Department | Phone numbers:  English: 1-800-480-3287; and Spanish: 1-866-658-8846 | Website:  https://askedd.edd.ca.gov or https://edd.ca.gov/Disability/SDI_Online.htm

CA Family Rights Act (CFRA)

  • Reference:
  • Rule(s) of Interest to FAs: CFRA includes a generous pregnancy disability leave (PDL) and other family care and medical leave provisions under The Fair Employment and Housing Act. Requires 1250 hours in the prior 12 months. CFRA is like FMLA, but CFRA also covers domestic partner and domestic partner’s children. An employer can require the employee to use vacation pay, but the employee cannot use sick leave if not for the employee’s own medical condition. Health benefits must be continued during the leave if the employer is part of a group plan.
  • Status:  No lawsuits known to AFA at this time.
  • AS Compliance:  No
  • Contact Information:  Department of Fair Employment and Housing | Mailing Address: 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758 | Phone: (800) 884-1684 | Email:  contact.center@dfeh.ca.gov | Website:  http://www.dfeh.ca.gov/

CA Family School Partnership Act

  • Reference:  CA Labor Code 230.8
  • Rule(s) of Interest to FAs: Employees may take 8 hours/month up to 40 hours/year to attend any day care or K-12 school function that is sponsored, supervised, or approved by the school, school board, or childcare facility. Time loss may be paid out of vacation pay, compensatory time off (CTO), personal time off or unpaid. Attendance Points may not be assessed for using this leave. Applies to parents, grandparents, or guardians with at least seven days’ notice.
  • Status:  No known disputes currently. – AFA encourages eligible and willing California FAs to request time off under this law and then to file a complaint with the state when denied.
  • AS Compliance:  No
  • Contact Information:  CA Dept of Industrial Relations | Phone Numbers: 1-844-619-8786 or SFO 415-703-5300, LAX 213-620-6330 or SAN 619-220-5451 | Email:  DLSE2@Dir.CA.gov | Website:  https://www.dfeh.ca.gov –> Complaints

Filing a Claim with the Appropriate Agency

AFA cannot file claims on behalf of Flight Attendants, but we’re here to assist

AFA does not have the ‘standing’ to file complaints with state or local agencies on behalf of affected employees–even if those employees are AFA Alaska members. However, we are very much interested in guiding and supporting members to file such complaints. Flight Attendants should reach out to their local AFA Benefits Committee representatives to discuss the law in question, and we will refer you to the applicable state agency so you can file a claim. Flight Attendants should copy an AFA rep into any email correspondence with the state.

Helpful tips

When filing a claim, the Flight Attendant will need to provide evidence of the Company’s refusal to comply with the law. Flight Attendants are encouraged to keep a documentation trail and to file timely as there may be filing timelines. We encourage Flight Attendants to tell any state agency representative that Alaska Airlines is knowingly disregarding the law.  AFA is hopeful that the states will act against Alaska Airlines management directly and compel the Company to comply with applicable state laws.   

In the Next Edition (Publishing Monday)

  • WA Long Term Care (Cares Fund)
  • CA 2021 COVID-19 Supplemental Paid Sick Leave

Recent Changes to COVID-19 Policies

Recent Changes to COVID-19 Policies

Master Executive Council (MEC) and Grievance Committee

Summary of Recent Changes to COVID-19 Policies

The following is a general summary of what Alaska Airlines management announced in the “Our plan for keeping you and our guests safe from COVID” email that was sent earlier yesterday to all employees regarding the Company’s approach to vaccination and COVID safety measures:

  • No requirement for existing employees to be vaccinated against COVID-19
  • Requirement for new hire employees to be vaccinated against COVID-19 -> This was previously communicated via an August 30th email from VP Inflight Travis Gelbrich “Important updates to pay protection and new hire policies,” which also references exceptions for accommodations required by law for medical exemptions or sincerely held religious beliefs
  • $200 incentive if proof of vaccination is submitted byOctober 15, 2021
  • Pay protection for vaccinated employees during any Company-mandated quarantine period for workplace exposure (for Flight Attendants: as defined by the Inflight division’s contact tracing protocol) -> Already communicated earlier in the week via the email from Travis
  • No pay protection for employees who decline to confirm being fully vaccinated for all COVID-related absences including during any Company-mandated quarantine period for workplace exposure (for FAs: as defined by the Inflight division’s contact tracing protocol) -> Already communicated earlier in the week via the email from Travis and confirmed by the updated contact tracing protocol effective September 2, 2021
  • For employees who decline to submit proof of vaccination by November 1st:
    • Regular COVD-19 testing
    • Must always wear a mask regardless of federal, state, and local requirements
    • Mandatory vaccine education program and acknowledgement of the risks of remaining unvaccinated and the protocols to be followed

Duty of Fair Representation

We know there are very strongly held and polar opposite convictions regarding mandatory vaccination—because we have heard from many of you regarding your expectation that we advocate for your personal position on the issue. However, the reality is that AFA has a duty to fairly represent all Flight Attendants. Consequently, the MEC continues to represent the entire group by faithfully reporting to management:

  • This is a complex issue.
  • Some FAs are passionately opposed to mandatory vaccinations, disclosing vaccination status and disparate treatment of those who decline to disclose their vaccination status.
  • Some FAs are passionately demanding mandatory vaccinations and all efforts to move in that direction.
  • The entire group is experiencing a range of emotions regarding the announced policy changes.
  • Almost everyone seems to be disappointed with at least some aspect of the policy changes.
  • Several questions and concerns about how the new COVID-19 policies will be administered remain unresolved.

Unprofessional and/or Unsupportive Behavior, Disparate Treatment, Discrimination, Hostile Work Environment, and Harassment

The MEC has received concerns about unprofessional and/or unsupportive behavior, disparate treatment, discrimination, and hostile work environment. Regardless of the following legal minutiae, we understand that being at work lately has been more uncomfortable due to the divided opinions about vaccination and management’s recent COVID-19 policy changes.

Unprofessional and/or Unsupportive Behavior

On this point, we agree with Travis: “Our individual views around vaccinations do not warrant unprofessional or unsupportive behavior towards our fellow employees.” We need to find a way to peacefully coexist with each other, or there will eventually be disciplinary consequences. If you or your peers are struggling with experiences of unprofessional and/or unsupportive behavior between union-represented employees, then the MEC recommends contacting AFA EAP/Professional Standards for peer-to-peer handling.

Discrimination

There is a difference between ‘discrimination’ in the sense of (1) inequitable application of a Company rule and/or contract provision and/or disciplinary action versus (2) discrimination of a legally protected class. We will address the former later in the communication. Regarding the latter, our analysis is that the recent COVID-19 policy changes do not qualify as prohibited discrimination of a legally protected class. Even if there were such discrimination, AFA does not have the legal standing to bring forward such complaints under the law–the employee must do that directly.

Disparate Treatment and Hostile Work Environment

The recent vaccination policy changes by management are not technically disparate treatment or creating a hostile work environment under the law because disparate treatment or hostile work environment situations must occur in conjunction with illegal discrimination of a protected class to qualify.

Harassment

If you experience unprofessional or unsupportive behavior, then it is best practice to resolve those concerns directly with the employee(s) or via referral to Professional Standards for peer-to-peer handling. If any Flight Attendant is truly feeling harassed, we recommend bringing those concerns forward to Human Resources. AFA will make our best effort to provide a union representative for support during any conversations with Human Resources. Alternatively, or additionally, you may consider filing a complaint with the relevant government agencies or consulting with an attorney to discuss legal options. 

Inequitable and Unilateral Application of Non-Contractual Company Policy

AFA filed Grievance No. 36-99-2-230-21 Violation of §16 Sick Leave/On the Job Injury in response to management’s recent inequitable and unilateral application of a non-contractual (i.e., extra-contractual) Company Policy:

[AFA is] requesting an investigation and hearing into the following issue:

The Company’s violation of Collective Bargaining Agreement §16 [Sick Leave/On the Job Injury], past practice, and all related sections of the Collective Bargaining Agreement when it announced beginning on or about August 31, 2021, that it would grant pay protection per §21.M [Compensation: Pay Protection…] to vaccinated symptomatic and/or COVID+ Flight Attendants for scheduling obligations removed due to Company-directed quarantine in response to high-risk COVID-19 workplace exposures and deny pay protection under similar or the same circumstances for unvaccinated Flight Attendants or for Flight Attendants who decline to disclose their vaccination status and would instead require them to be removed from their scheduling obligations by forcing them onto sick leave and paid through their sick leave bank or accrued vacation pay if the sick leave bank was depleted. Neither §16 nor §21.M contains any exceptions or distinctions based on vaccination status, yet the Company failed to bargain with the Association and unilaterally implemented such non-contractual exceptions or distinctions inequitably across the collective bargaining unit.

Essentially, we are grieving the fact that management has no basis for applying the contract to some but not all Flight Attendants. Specifically, this is about Flight Attendants who decline to disclose vaccination status or have acknowledged they are not fully vaccinated and management’s denial of access to pay protection vs. sick leave for such FAs. This is because these FAs are inequitably and unilaterally denied pay protection for mandated quarantines under the COVID-19 contact tracing workplace exposure protocol and instead forced onto sick leave regardless of whether they are sick or not. Conversely, FAs who have confirmed they are fully vaccinated are afforded pay protection under the same or similar circumstances. This grievance was filed in response to management’s inequitable application of contractual sick leave provisions and benefits across the collective bargaining unit and not in response to any position about vaccination.

Remaining Questions and Concerns

The MEC recognizes that several details about the recent COVID-19 policy changes remain unclear and possibly may lead to AFA filing additional grievances. We have at least one follow-up meeting already scheduled between management and MEC representatives to discuss questions and concerns, so stay tuned for subsequent developments soon.

COVID-19 Vaccination Attestation Concerns

COVID-19 Vaccination Attestation Concerns

Master Executive Council (MEC), Grievance Committee

Several members have reached out to AFA regarding management’s recent email titled, “Vaccination Attestation and Masking policy changes.”  Some of the questions being asked:  Can management ask about our vaccination status?  Is it a violation of Health Insurance Portability and Accountability Act (HIPAA) to ask about our vaccination status?  What is AFA doing about it?

Can Alaska Airlines (a private employer) ask about employees’ vaccination status?

In a nutshell, yes.  Given the contagiousness and deadliness of the COVID-19 virus and its more contagious Delta variant, companies have a legitimate business reason to inquire about an employee’s vaccination status.  An employer can ask employees about their vaccination status and/or for proof of vaccination provided it does not make medical inquiries that could prompt discussion about disability-related information, which would violate the Americans with Disabilities Act (ADA). 

Employers have a duty of care under the Occupational Safety and Health Act (OSHA) to provide a safe workplace for employees.  Under this duty of care an employer can ask employees about their vaccination status and/or for proof of vaccination, subject to the U.S. Equal Employment Opportunity Commission (EEOC) guidelines.  If an employee is unable or unwilling to disclose their vaccination status and/or to provide proof of vaccination, the employer is allowed to enforce workplace safety policies such as mask wearing and/or social distancing.  Management has the discretion to treat such employees the same way as employees who refuse to be vaccinated on non-medical or non-religious grounds.

Identifying employees who are exempt from mask requirements while in Company buildings with tags or stickers is not a discriminatory practice under EEOC guidelines.  Tags or stickers will not be actively distributed to crewmembers because mask requirement remain in place at airports and on aircraft, and there is no exemption to those requirements for crewmembers.

At this point, Alaska Airlines is not requiring proof of vaccination status, but AFA believes it would behoove one to answer honestly since it appears the Company has the legal right to request such proof. If you have concerns about disclosing your status, AFA recommends selecting the opt-out response: “I decline to answer.”

Is it a violation of HIPAA for an employer to ask employees about their vaccination status?

HIPAA applies to covered entities such as healthcare providers and the like.  HIPAA does not apply to most (non-healthcare) employers, so it is not a violation for Alaska Airlines to ask its employees about their vaccination status. HIPPA is designed to keep your medical information safe from being shared with third parties. In other words, management can ask you about your vaccination status, but cannot contact your doctor or healthcare provider to ask about your status. Even so, management will safeguard the records of employee attestations by sharing the information only with Human Resources and those deemed necessary to know in limited circumstances and by storing the data in a separate location from personnel records.

What is AFA doing about it?

Management’s requirement for employees to complete a vaccination attestation is not a contractual violation under our Collective Bargaining Agreement, nor does such requirement appear to be a violation of religious freedoms, civil liberties, or any other federal laws.  The “requirement” to complete the attestation is more like a strongly encouraged request because management has indicated to AFA that employees who do not fill out the form will not be disciplined at this time, so we do not anticipate any resulting disciplinary grievances. Finally, there is an opt-out response available for any who remain concerned about disclosing their vaccination status: “I decline to answer.”

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Management vs. State and Local Laws – Part 3

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Management vs. State and Local Laws – Part 3 Master Executive Council (MEC), Grievance Committee, Benefits Committee This is the third in a series reporting on management’s opposition to various state and local laws, the latest developments to complex state law litigations related to these laws that are playing out in Washington and California, and […]

Management vs. State and Local Laws – Part 2

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Management vs. State and Local Laws – Part 2 Master Executive Council (MEC), Grievance Committee, Benefits Committee This is the second in a series reporting on management’s opposition to various state and local laws, the latest developments to complex state law litigations related to these laws that are playing out in Washington and California, and […]

We Will Never Forget – September 11, 2001

United Flight 175 Robert J. FangmanAmy N. JarretAmy R. KingKathryn LaBorieAlfred G. MarchandMichael C. TarrouAlicia N. TitusCaptain: Victor SaraciniFirst Officer: Michael HorrocksCustomer Service Representatives: Marianne MacFarlane and Jesus Sanchez United Flight 93 Lorraine G. BaySandra BradshawWanda A. GreenCeeCee LylesDeborah WelshCaptain: Jason DahlFirst Officer: Leroy Homer American Flight 11 Barbara AresteguiJeffrey CollmanSara LowKaren MartinKathleen NicosiaBetty OngJean […]

AFA Alaska Update – September 3, 2021

In This Edition September 11th Unity Remembrance Pin Uniform Quality Issues – Your Help Is Needed! Hotel Resources & Safety Reminders Personal Strategies for Approaching the Anniversary of September 11th September 11th Unity Remembrance Pin AFA International Our September 11th Unity Remembrance Pin was designed in solidarity with the Association of Professional Flight Attendants (APFA) […]

Recent Changes to COVID-19 Policies

Recent Changes to COVID-19 Policies Master Executive Council (MEC) and Grievance Committee Summary of Recent Changes to COVID-19 Policies The following is a general summary of what Alaska Airlines management announced in the “Our plan for keeping you and our guests safe from COVID” email that was sent earlier yesterday to all employees regarding the […]

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