While OSHA's mandatory vaccine rule remains in legal limbo, the general counsel of the National Labor Relations Board (NLRB) issued a memo on November 10th, outlining bargaining obligations for employers with unionized workforces under the rule. As we have reported, OSHA's Emergency Temporary Standard (ETS) requires that workers of large employers either be fully vaccinated or receive weekly testing for COVID-19 beginning January 4, 2022, and a federal appeals court has temporary blocked this order from taking effect in a November 6th order.
In short, employers with unionized workforces subject to the ETS (that employ 100 or more workers) will (assuming the ETS ultimately goes forward) be obligated to follow the rule and implement a vaccine or test program, regardless of whether or not the union accedes. However, unionized employers are obligated to bargain with the union over (1) decisions on how to implement the ETS in areas where employers have discretion, and (2) any effects to the workforce from implementing these requirements.
On these points, the NLRB's General Counsel memo states that employers (1) "have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment — to the extent the ETS provides employers with choices regarding implementation," and (2) "leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision."
Employers have significant flexibility under the ETS over how to implement the vaccine or testing requirements and, for example, employers are free to mandate vaccinates and only allow those who qualify for medical or religious exemptions to remain unvaccinated but complete weekly testing.
Another major area where employers have discretion is who pays for testing – the ETS does not require that employers bear costs for testing, but OSHA's Frequently Asked Questions note that collective bargaining agreements may require that employers pay for such tests and that who pays can be negotiated in any event. (OSHA's FAQs even point out that employers may be incentivized to pay for testing in light of the "tight labor market.")
Likewise, the ETS requires that employers provide up to four hours of paid time off to employees – separate from any vacation time they have accrued – for time spent getting the vaccine during work hours. However, there is no requirement to provide similar time off for employees who must be removed from the workplace after testing positive for COVID-19, and this is another area ripe for bargaining.
Therefore, the above areas within employers' discretion are among the issues that companies and unions may need to address through collective bargaining, in addition to the effects that both mandatory and discretionary aspects of the ETS will have on the workforce.
Also note that nothing in the ETS prevents employers from agreeing with unions to implement additional measures beyond what OSHA requires, and the ETS does not displace collective bargaining agreement provisions that exceed the ETS's requirements. For example, employers may agree to provide masks to employees, cover costs associated with COVID-19 tests, including reimbursement for travel, and require that all employees wear masks regardless of vacation status, even though these measures are not mandated by OSHA.
Of course, as the NLRB general counsel's memo observed, "each case stands on its own facts." An employer's bargaining obligation over a particular issue may depend on a number of factors, including language in the applicable collective bargaining agreement and the parties' bargaining history, so we recommend consulting with counsel to determine the extent to which you may need to involve the union on decisions concerning the ETS or the COVID-19 pandemic in general.
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