Article contributed by Kellis Borek, Archbright Employers Association
Employers considering requiring their employees to get vaccinated against COVID-19, whether by policy choice or required by a federal, state, or local mandate, have much to consider before implementing such a policy. Unionized employers have even more to consider.
Section 8(d) of the National Labor Relations Act (NLRA) requires an employer to bargain in good faith with the union representing its employees concerning “wages, hours, and other terms and conditions of employment.” Requiring employees to be vaccinated is very likely considered a change in conditions of employment.
There are two types of bargaining obligations concerning an employer’s change in terms and conditions of employment. Decisional bargaining refers to an employer’s duty to bargain the actual decision in question, as opposed to bargaining the impacts of a decision, which is considered impact bargaining.
Decisional Bargaining Required? What’s in the Contract?
If an employer is currently negotiating a new collective bargaining agreement (CBA), they may propose a mandatory vaccine program and negotiate it along with the other provisions proposed by both sides.
However, it’s more likely that the current CBA is “closed,” and the expiration date is months or even years away. In this case, employers should consider the following to determine their duty to bargain the decision to implement a mandatory vaccination:
- Are mandatory vaccinations already addressed in the current CBA? This is not likely unless it was negotiated since March 2020 and/or vaccinations are mandated by the current CBA due to the employer’s business (i.e., healthcare organizations or hospitals).
- Is there a Management Rights article in the CBA granting the employer the right or responsibility to provide for the health and safety of its employees? Or, if silent on safety, this clause may grant management whatever rights it has not given away in the CBA.
- Is there a zipper clause, also known as the Complete Agreement clause in the CBA with a broad waiver by the union of its rights to bargain during the term of the CBA?
- Is there a Safety Article that creates a method for the union and the employer to address safety matters?
- Is there a Labor Management Committee article that provides a method akin to mediation to address issues impacting the union employees?
If an existing CBA contains any of these provisions, the employer may have the right to decide to unilaterally institute a vaccine mandate. After deciding to implement a mandatory policy, the employer must then bargain the impacts of the policy. Impacts requested by the union regarding mandatory vaccines might include extra time off for vaccines and side effects, cost, if any, to the employee, and repercussions for failing to get a mandatory vaccine. These issues must be bargained to a valid impasse before the vaccine policy is implemented.
Bargaining Obligations in Response to State and Federal Legislation
Vaccine mandates issued at the state and federal levels require COVID-19 vaccinations for employees working for federal contractors, executive branches, state government, healthcare providers, and those in educational settings. Additionally, on November 5, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) mandating vaccines or testing for all employees who work for a private employer with 100 or more employees.
After numerous challenges to the Vaccine ETS in U.S. Federal Courts, a temporary “stay” was issued by the 5th Circuit Court of Appeals, blocking OSHA from enforcing the Vaccine ETS. On November 16th, the 6th Circuit Court of Appeals was randomly selected to hear the consolidated action and will be authorized to determine the fate of the Vaccine ETS. Ultimately, however, the U.S. Supreme Court may have the final say in whether its upheld.
Notwithstanding the “in limbo” status of the ETS, last week, the National Labor Relations Board (NLRB) General Counsel issued Memorandum OM 22-03 (Memo) addressing unionized employers’ duty to bargain the ETS implementation. The short memo states employers have both decisional and impact bargaining obligations with respect to the implementation of the Vaccine ETS.
For employers subject to the Vaccine ETS, the memo requires decisional bargaining on discretionary aspects of the ETS, such as the decision to mandate the vaccine for all or allow exemptions for employees who wear face coverings at work and submit to regular COVID testing. For the elements of the ETS that do not give covered employers discretion, the employer is required to bargain to a valid impasse about the effects of the decision.
Employers subject to Washington and Oregon state and federal contractor vaccine mandates, which do not have discretionary components, must simply follow the law as outlined in the various directives. In this case, unionized employers must bargain the impacts of complying with the vaccine mandates.
Proactively Engage the Union
Even if the CBA gives the employer the right to unilaterally require vaccines, employers may still want to consider at least consulting with the union when developing such programs to foster goodwill and to gain employee buy-in. Unions have pushed for heightened employee safety during the pandemic, including asking for hazard pay and appropriate PPE. One could argue to the union that a workplace where every employee is vaccinated is the safest environment to protect union members.
An employer’s proposal for a mandatory vaccine or an agreed Memorandum of Understanding with the union should at a minimum contain the deadline by which an employee must be vaccinated, acceptable forms of proof of vaccination, a process for an employee to request a religious or medical accommodation, and whether or not the employer will pay for the employee’s time to obtain and recover from the vaccine (and if so, how much). Consider if incentives like making the vaccine available at the worksite or an extra day of vacation can be offered to get an agreement with the union.
Watch for Protected Concerted Activity and Whistleblowers
Both union and non-union employers should be mindful of Section 7 of the NRLA, which protects employees’ rights to join together to engage in the advancement of rights. If union or non-union employees join together to protest an employer’s COVID vaccine program (or lack thereof) and the employer takes adverse action against those employees as a result, it could lead to unfair labor practice charges being filed against the employer with the NLRB. OSHA’s whistleblower provision section 11(c) may afford protections to an employee who refuses to be vaccinated under an employer’s mandatory vaccination policy because of the reasonable belief that a medical condition may cause a reaction to the vaccine, resulting in serious injury or death. Conversely, employees may allege that employers without vaccination programs have failed to provide a safe and healthy workplace required by OSHA.
Unionized employers considering implementing a vaccine mandate are strongly encouraged to contact their legal counsel before doing so. Employers subject to the Vaccine ETS, should it be upheld, must engage their unions without further delay. Gold and Silver Archbright members have access to qualified labor attorneys at a discounted hourly rate to help with labor negotiations. Members with additional questions can contact the HR Hotline or reference the mozzo Resource Library for more information.