COVID-19 Vaccination Attestation Concerns

August 3, 2021 20:00

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.”

AFA Alaska Update – July 30, 2021

July 30, 2021 12:00

In This Edition

Protect Our Contract – Don’t Perform Duties Belonging to Other Work Groups
Help End Human Trafficking: Take the Survey

Protect Our Contract – Don’t Perform Duties Belonging to Other Work Groups

Grievance Committee

Over the course of many decades, all of us have worked hard to improve our working conditions and strengthen our collective bargaining agreement (CBA). These improvements have been achieved through several avenues including demonstrating our solidarity during contract negotiations, lobbying management to make changes that benefit our profession, and rigorously enforcing the contractual language that we have already achieved. It is the responsibility of each of us to continue to protect and defend our contract and hold management accountable for what has been agreed upon by both our Flight Attendants and the Company.

Recently, management has made it known that they are having a particularly difficult time recruiting and retaining frontline employees in various locations throughout the route network. This includes staff who are directly employed by the company, those who are employed by subsidiaries of the company (e.g., McGee Air Services), and contract vendors who provide above- and/or below-the-wing services at various stations. The situation has caused a noticeable impact to the Company’s operations and has resulted in some on-the-ground functions being adjusted or modified due to staffing in some situations.

We all know that Alaska Airlines focuses on hiring Flight Attendants who exhibit kindness and demonstrate a willingness to help. Because these traits are such a pervasive part of our culture, it may be tempting to want to jump in and assist our coworkers from other work groups when we see that they are short staffed. Unfortunately, this causes more harm than good for several reasons.

As previously mentioned, it is up to each of us to protect the provisions of our collective bargaining agreement. Section 24.D of the CBA says in part: “A Flight Attendant will not be required to perform work normally assigned to a cleaner, provisioner, ramp or operations agent.” Just as we expect other work groups to honor our contractual language by not performing Flight Attendant duties and responsibilities, it is similarly important that we respect other work groups and their normally assigned scope of work as well. Doing so protects the security of both Flight Attendant jobs and the jobs of our coworkers in other departments.

Customer service, ramp, mechanics, pilots, fleet service, catering, and other work groups receive specific training to perform their duties that Flight Attendants do not have. We must allow our colleagues to do the work that they have been trained to do to ensure that it is done in compliance with applicable regulations and to company standards. If there are concerns with staffing in a particular department, management needs to receive the corresponding reports of flight delays, complaints from passengers, and performance audit results. These are all indicators that management uses to adjust and ensure that our colleagues in other departments have the support that they need. If this data is skewed to show that no problems exist, then no changes will made by management to ensure proper staffing and service levels.

The best way that Flight Attendants can show support for other work groups who might be experiencing short staffing is by reporting the issue to ensure that it gets attention from the right levels of management. This can be accomplished by submitting a Flight Attendant Irregularity Report (FAIR) detailing the date, flight number, and specifics of the situation (e.g., areas that were skipped/missed, etc.).

Questions?

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

Help End Human Trafficking: Take the Survey

AFA International

AFA is partnering with United Against Slavery in a global effort to end the scourge of human trafficking. As Flight Attendants and aviation’s first responders, we are uniquely positioned to identify human traffickers and assist their victims.

Human trafficking is a billion-dollar business, but Flight Attendants can be 100,000 Eyes in the Skies to recognize and report it. We can be the ones to make the difference.

Historical efforts to gather and understand information to implement effective solutions for this crime have been a challenge and success seemed unattainable. Why? They have not involved collecting the knowledge that only those on the frontlines have.

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Management vs. State and Local Laws – Part 1

July 28, 2021 09:00

Management vs. State and Local Laws – Part 1

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

This is the first 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.

Background

Management alleges that certain state and local laws do not apply to flight crew

Airlines For America (A4A) is an American trade association and lobbying group representing major North American air carriers such as Alaska Airlines. A4A and/or Alaska Airlines management has taken the position that the Railway Labor Act (RLA) preempts (i.e., invalidates) certain state and local laws that in its opinion overlaps with, conflicts with or complicates various benefits and provisions provided for in collective bargaining agreements negotiated with labor unions representing flight crew. Simply stated, A4A and Alaska Airlines management are making legal arguments in several jurisdictions (e.g., WA, CA, MA and NY) that specific state and local laws do not apply to Flight Attendants and pilots. However, it is notable that management has been honoring the same laws for ground employees–even if they are also covered by contracts negotiated with their respective labor unions and under the RLA.

Management believes that honoring various local laws for flight crew would ultimately lead to competitive disadvantage and tough business decisions in response

Why? Based on our interactions with management, here are some of the reasons offered by management to justify denying flight crew access to various benefits and protections provided for under what management characterizes as a “patchwork quilt” of state and local laws:

Administratively burdensome to honor because of the difficulties in tracking the sheer number of such laws and complying with their complexities.
Some laws may overlap with and/or conflict with one another and may also apply only conditionally based on the real-time location of an individual crewmember.
Significant challenges with overlaying these laws on top of the provisions of existing collective bargaining agreements (e.g., clock hours versus block hours versus TFP; meal, rest break and wage reporting requirements).
Honoring such laws for flight crew would create significant operational and financial liabilities for the Company and thereby result in untenable competitive disadvantage. This in turn could lead management to reevaluate the viability of existing crew domiciles in problematic locations and to make tough business decisions about the location of crew domiciles going forward. Management has cautioned your union leadership to beware of the potential for such unintended and undesirable consequences as these would likely be perceived by you as unacceptably disruptive and universally unpopular.

AFA is closely following the preemption litigations with great interest

AFA is closely following the preemption litigations with great interest because the outcomes affect our members at various airlines. However, the legal arguments themselves are generally outside of AFA’s “jurisdiction” in the sense that the Association’s sole duty is to act as the agent for members of the collective bargaining unit under the RLA and to fairly represent them. AFA neither has an obligation to directly participate in the preemption disputes nor has the resources to broadly do so, but nonetheless we have very strategically chosen to intervene in some of the preemption litigations over the past ten years. Several current and former MEC officers and chairpersons have been directly involved in a few cases as complainants, subject matter experts and/or deposed witnesses.

Recent Cases

Washington Family Care Act: Alaska Airlines v. Schurke (WA L&I)

In approximately 2012, Alaska Airlines sued the State of Washington regarding provisions of the Washington Family Care Act (WFCA), alleging that the WFCA does not apply to Washington-domiciled Flight Attendants. AFA intervened as a defendant in the suit, as this was a case of first impression, and we wanted our interests protected in an area of law not yet addressed.

The case was initially decided in favor of the State of Washington and AFA. Alaska Airlines appealed the case to the US Court of Appeals for the 9^th Circuit. A panel of three justices decided in Alaska Airlines’ favor. At that point, the State of Washington and AFA requested an en banc opinion, with all justices making a decision.

In August 2018, the en banc opinion ruled in favor of the State of Washington and AFA. Alaska Airlines then filed an appeal with the United States Supreme Court. The US Supreme Court did not grant the writ of certiori, which means it did not accept the case, and the 9^th Circuit ruling stands in favor of the State of Washington and AFA.

The case went back to a state administrative hearing, and the administrative law judge ruled for the State of Washington and AFA. Alaska Airlines then appealed this ruling. We are currently awaiting a ruling on the appellate case, which hopefully will be issued within the next few months. In the meantime, Alaska Airlines is still not honoring this law.

Washington Paid Sick Leave: A4A v. WA L&I and Joel Sacks

In early 2018, AFA demanded that Alaska Airlines comply with a new State of Washington law: Washington Paid Sick Leave (WPSL) law. Alaska’s response to AFA’s formal demand was to have A4A file suit against the State of Washington on behalf of all airlines it represents. Again, AFA was an intervenor in this lawsuit. The State of Washington and AFA won this suit in a summary judgment motion; A4A appealed the ruling.

On November 17, 2020, the parties argued in front of the US Court of Appeals for the 9^th Circuit, and a decision was returned very recently that ruled in favor of the State of Washington and AFA. At this juncture, AFA has every reason to believe that A4A will attempt an appeal with the US Supreme Court. In the meantime, Alaska Airlines is still not complying with the law.

California overtime, meal & rest breaks, and wage statement laws: Bernstein v. Virgin America

In 2018, a California state court ruled in favor of Virgin America Flight Attendants, which resulted in an initial award of just under $78 million when factoring in legal fees and other costs. Alaska Airlines appealed this judgment, and it currently remains in the appeal process.

California wage statement laws: Gunther v. Alaska Air Group Inc.

In May 2019, a California state court ruled in favor of an Alaska Airlines Flight Attendant who brought her own wage statement non-compliance lawsuit against Alaska Air Group. The court ruled against Alaska Airlines on behalf of all California-domiciled Flight Attendants and issued an award of $25 million. Seventy-five percent of the award is to be paid to the State of California, and the remaining twenty-five percent of the award is to be paid to California-domiciled Flight Attendants with no more than $4,000 to each Flight Attendant. Alaska Airlines also appealed this judgment, and it is presently still in the appeals process.

New and Pre-Existing Laws Denied

In response to litigation of the Washington State leave laws initiated directly by Alaska Airlines management or indirectly via Airlines for America (A4A), management has simply denied flight crew access to the benefits of new laws. Management also retracted a Flight Attendant’s ability to use several state laws already existing at the time litigation was filed. One example of such retraction is the California Family School Partnership Act, which management allowed California-domiciled Flight Attendants to use for many years prior.

Next Up (in “Management vs. State and Local Laws – Part 2”)

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

Section 32 Attendance Policy Points Related to COVID-19

June 2, 2021 16:00

Section 32 Attendance Policy Points Related to COVID-19

Grievance Committee

AFA and management recently agreed to a Memorandum of Understanding (MOU) regarding Section 32 Attendance Policy Points Related to COVID-19. This MOU is now in effect through September 30, 2021. Related information can be found in Bulletin Bundle 2021-0030 dated April 12, 2021; however, there are several out of date or incomplete details, so AFA will request that management update the bulletin and/or issue a new one.

Click here for the Section 32 Attendance Policy Points Related to COVID-19 MOU (5/28/2021) >

Details

To apply for points forgiveness for absences related to COVID-19:

Go to the Inflight website –> Administration –> Performance to complete a COVID-19 Absence Reporting Form for each qualifying ‘single continuous occurrence’ (SCO) related to COVID-19;
Submit the form for each SCO absence related to COVID-19 no later than the end of your next scheduled sequence; and
In addition to the form, you must submit a positive COVID-19 test result for yourself or for someone in your household, or proof of your COVID-19 vaccination, either of which must be provided to the Inflight Performance Team’s confidential email address no later than the end of your next scheduled sequence,

If returning from a leave of absence, you must submit the form and documentation within 14 days of returning from the leave of absence.

For more details, please see the MOU.

About Certain State Laws…

In the midst of drafting the MOU, and after management published the above Bulletin Bundle, a new California COVID-19 law was enacted. The new law is retroactive to January 1, 2021, and in effect through September 30, 2021. CA 2021 COVID-19 Supplemental Paid Sick Leave provides that California employees are entitled to a separate bank of paid sick leave in certain circumstances related to COVID-19, in addition to other record-keeping and paystub requirements.

Alaska Air Group management and the other Airlines for America (“A4A”) member carriers continue to argue that many state laws, including the CA 2021 COVID-19 Supplemental Paid Sick Leave, are not applicable to Flight Attendants and Pilots because those laws are preempted by federal law (e.g., the Railway Labor Act). Various parties, including AFA, have been litigating the broader claim of preemption against A4A and/or AAG management in federal and state court for 10+ years. However, management continues to appeal the cases they lose, so their claim that certain state laws do not apply to aircrew continues.

Stay tuned for more details regarding which state laws management is blatantly refusing to apply to aircrew, what you can do to help in the effort to fight back, and how to exercise your rights to these state laws. In the meantime, we encourage California-domiciled Flight Attendants to familiarize yourselves with the various provisions of the CA 2021 COVID-19 Supplemental Paid Sick Leave law. AFA strongly suggests that any communications with management about the law should be in writing, and it is best practice to copy in a union rep. Covered California employees who are denied the provisions of the law may file a claim or a report of a labor law violation with the CA Labor Commissioner’s Office, which is the state agency charged with enforcement.

If you have any questions or need clarification, please contact your LEC president for assistance.

AFA Alaska Settlement Agreement 36-99-2-45-17 “Violation of §10.S Pre-Cancellations and Schedule Changes”

May 29, 2021 12:00

AFA Alaska Settlement Agreement 36-99-2-45-17 “Violation of §10.S Pre-Cancellations and Schedule Changes”

Grievance Committee

After several years of periodic settlement discussions, AFA and management have settled Grievance No. 36-99-2-45-17 “Violation of §10.S Precancellation and Schedule Changes.” This settlement agreement becomes effective Tuesday, June 1, 2021, at 12:01 AM Pacific Time.

Click here for AFA Settlement Agreement Grievance No. 36-99-2-45-17 “Violation of §10.S Pre-Cancellation and Schedule Changes” >

Some History

AFA filed Grievance No. 36-99-2-45-17 “Violation of §10.S Pre-Cancellation and Schedule Changes” back in June 2017 regarding retimes of between 15 and 21 minutes that were pushed to schedules in advance of the day of departure (prior to the first day) of a sequence. (Read the July 2017 Grievance Report for more details.) Management sustained the grievance (meaning they agreed the contract was violated) shortly thereafter in July 2017. However, AFA disagreed with management’s remedy (i.e., the “fix”) for the violation, and the parties have been in negotiations over the remedy since then.

We were somewhat close to achieving a mutually agreeable solution when the pandemic began, which delayed our progress. However, the pandemic did provide an opportunity to test drive a proposed remedy to the dispute starting on April 18, 2020, via the temporary COVID-19 Schedule Changes Letter of Agreement (LOA), which was extended through June 30, 2020. Please note that most but not all aspects of that temporary LOA were incorporated into this grievance settlement agreement.

Details

This settlement agreement requires that all pre-cancellations, retimes, flight routing changes, and aircraft downgrades (i.e., from a four-position aircraft to a three-position aircraft) that occur in advance of the day of departure of a sequence will be handled under JCBA §10.S [Pre-Cancellations]. This will apply to Lineholders and to Reserves who pick up on days off. The language in §10.S Pre-Cancellations remains the same but will be interpreted to encompass the agreed-to definitive parameters around retimes, flight routing changes and aircraft downgrades.

The settlement makes it very clean in defining when the provisions of §10.S Pre-cancellations are used. Essentially any schedule change that occurs for Lineholders (and for Reserves who pick up on days off) prior to the first day of a sequence, except for a simple flight numbering change, will now always be handled as a pre-cancellation under §10.S. A simple flight numbering change in the absence of a retime or a flight routing change may occur at any time and does not trigger the contractual provisions of §10.S.

Summary of §10.S Pre-Cancellations

Note: The following is a summary of pre-cancellation provisions under §10.S. Please refer to the contract for a comprehensive description.

Alternate Assignment Offered During Initial Contact (§10.S.2)

If there is a schedule adjustment involving a pre-cancellation, retime flight routing change or aircraft downgrade on the day(s) prior to the first day of a sequence, then Crew Scheduling will make initial contact and may offer an alternate assignment made up of one or more sequences with a check-in up to two hours prior to scheduled check-in and/or with a release up to two hours later than scheduled release. The two options are to (1) accept the alternate assignment (§10.S.2.a) or (2) to decline the alternate assignment and waive pay protection (§10.S.2.b). If Crew Scheduling does not have an alternate assignment available that meets the required criteria of falling within the scheduled footprint plus two hours on either side (before or after) when they first make contact with the Flight Attendant, then the Flight Attendant can opt to call Crew Scheduling between 6 PM and 8 PM local domicile time the evening prior to the sequence (§10.S.2.c).

No Alternate Assignment Offered During Initial Contact (§10.S.3)

If Crew Scheduling does not offer an alternate assignment when they make initial contact with the Flight Attendant, then the Flight Attendant can either (1) waive pay protection and be relieved of further obligation (10.S.3.a), or (2) they can opt to call Crew Scheduling between 6 PM and 8 PM local domicile time the evening prior to the sequence (§10.S.3.b).

Calling Back Between 6 PM and 8 PM the Evening Prior (§10.S.2.c and §10.S.3.b) or no Later Than Release Time if on Duty (§10.S.7)

When the Flight Attendant calls back between 6 PM and 8 PM local domicile time the evening prior to the sequence, either (1) an alternate assignment that operates within the exact footprint of the original sequence must be available (§10.S.2.c.1 or §10.S.3.b.1) or (2) the Flight Attendant is pay protected (§10.S.2.c.2 or §10.S.3.b.2). A Flight Attendant must call back no later than release time if on duty during those hours (§10.S.7).

Reassignments (§10.R) – Same Day and/or Sequence in Progress Schedule Changes

Same day and/or sequence in progress schedule changes are covered under §10.R Reassignments. Please note AFA and management have on multiple occasions confirmed their mutual understanding that Flight Attendants will neither be required nor offered to report earlier than scheduled for the first duty period of a sequence under §10.R Reassignments. The parties continue to work their way through several contractual disputes related to reassignments that are currently active, and AFA will keep you updated on any developments.

If you have any questions or need clarification, please contact your LEC president for assistance.

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COVID-19 Vaccination Attestation Concerns

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

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

What is AFA doing about it?

In This Edition

Protect Our Contract – Don’t Perform Duties Belonging to Other Work Groups

Questions?

Help End Human Trafficking: Take the Survey

Management vs. State and Local Laws – Part 1

Background

Management alleges that certain state and local laws do not apply to flight crew

Management believes that honoring various local laws for flight crew would ultimately lead to competitive disadvantage and tough business decisions in response

AFA is closely following the preemption litigations with great interest

Recent Cases

Washington Family Care Act: Alaska Airlines v. Schurke (WA L&I)

Washington Paid Sick Leave: A4A v. WA L&I and Joel Sacks

California overtime, meal & rest breaks, and wage statement laws: Bernstein v. Virgin America

California wage statement laws: Gunther v. Alaska Air Group Inc.

New and Pre-Existing Laws Denied

Next Up (in “Management vs. State and Local Laws – Part 2”)

Section 32 Attendance Policy Points Related to COVID-19

Details

About Certain State Laws…

AFA Alaska Settlement Agreement 36-99-2-45-17 “Violation of §10.S Pre-Cancellations and Schedule Changes”

Some History

Details

Summary of §10.S Pre-Cancellations

Alternate Assignment Offered During Initial Contact (§10.S.2)

No Alternate Assignment Offered During Initial Contact (§10.S.3)

Calling Back Between 6 PM and 8 PM the Evening Prior (§10.S.2.c and §10.S.3.b) or no Later Than Release Time if on Duty (§10.S.7)

Reassignments (§10.R) – Same Day and/or Sequence in Progress Schedule Changes

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