The NLRB’s General Counsel addressed that question in a recently issued memorandum outlining employers’ obligations with respect to compliance with the ETS. The ETS requires private sector employers with over 100 employees to adopt and implement mandatory vaccine policies for their workforces. The ETS is currently on hold because of a decision from the 5th Circuit Court of Appeals, but employers should continue to make efforts to comply with this standard and be prepared to discuss implementing the mandate with their unionized workforces. Given the tight timelines and clear deadlines for compliance with the ETS, employers should be prepared to comply with the standard as some version of the ETS may be in place once the final judicial outcome is certain.
As noted in the GC’s memorandum, employers have two types of bargaining obligations as it relates to the ETS. The first is decisional bargaining obligations, which requires an employer to bargain with the union regarding its intention to adopt a policy if the policy affects wages, benefits, or other terms and conditions of employment. Ordinarily, employers do not have to bargain about such a policy decision if they are legally compelled to comply with a federal or state requirement. Employers, however, do have to bargain where the employer has discretion regarding how it will comply with the law. As noted in the GC’s memorandum, since the ETS gives employers the discretion to mandate vaccination for all covered employees or to adopt a policy that allows an employee to either get vaccinated or undergo regular testing, the GC takes the position that the employer must negotiate with the union regarding which option to implement.
Second, employers will have to bargain over the effects of their ETS-compliant policy. For example, an employer would have to bargain over the mechanics of paid time off for employees who experience vaccine side effects and how the employer will handle non-compliance with its policies.
As noted in our previous post, the OSHA ETS does not directly affect public sector employers but requires state agencies like CONN-OSHA, which does regulate public employment health and safety standards, to implement its own rules that will need to be as “at least as effective” as the federal OSHA standards.
So what does this all mean for unionized public sector employers? While the General Counsel’s memorandum is not binding on our State Board of Labor Relations, it is viewed as highly persuasive and would likely be supported by the SBLR. Public employers who do not have a vaccine mandate or vaccine/testing in option in place should consider moving in that direction. While public employers are deciding which option to take ( vaccine mandate or a vaccine mandate with a testing option), it may be wise to discuss the decision and the effects of that decision with your respective bargaining units.
Our attorneys are ready to assist employers with all labor and employment matters, including compliance these requirements.