January 19, 2022

Volume XII, Number 19

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January 18, 2022

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BREAKING: NLRB General Counsel Issues Memo on Bargaining Obligations Under OSHA’s Vaccination Requirements

On November 10, 2021, General Counsel Jennifer Abruzzo issued a memorandum outlining bargaining obligations under OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).  Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus, GC 22-03 (November 10, 2021).

The ETS, which took effect on November 5, 2021, requires employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.”  The ETS, however, provides an exception, permitting employers to adopt a policy either requiring employees to receive the vaccination or submit to regular COVID-19 testing if they opt to remain unvaccinated.  Immediately following the ETS’s implementation, numerous lawsuits challenging the rule were filed resulting in the Fifth Circuit Court of Appeals temporarily staying the ETS on November 6th.

In the memorandum, GC Abruzzo takes the position that “covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment.”  The memorandum argues that the ETS “clearly affects terms and conditions of employment” because of its potential to affect the continued employment of employees who are affected by the rule and thus bargaining is required.  Although Abruzzo acknowledged that there is no duty to bargain where a change in the terms and conditions of employment is statutorily mandated, the memorandum emphasizes the discretion afforded to employers in complying with the ETS and the duty to bargain that arises as a result.  Namely, employers have the option of mandating vaccination for all employees or requiring employees to either become vaccinated or undergo regular testing if they refuse the vaccine.  As the memorandum notes, an employer “may not act unilaterally so long as it has some discretion in implementing” statutory requirements.

Even where the ETS does not provide employers any discretion, Abruzzo goes further, noting that large employers are required to bargain over the effects of their decision to implement changes under the ETS.  The memorandum cites National Labor Relation Board (“NLRB”) precedent for the proposition that even where an employer can unilaterally change policies under federal law, failure to bargain over the effects of the change can constitute a violation of Section 8(a)(5) of the National Labor Relations Act.

Takeaways

Although the memorandum is relatively short, it plainly makes the NLRB’s position known.  Failure to bargain and reach agreement or impasse over: (i) the effects of ETS-compliant policies; or (ii) the employer’s decision about how to comply with the ETS where it is afforded discretion may constitute an unfair labor practice.  While each individual case may differ, employers aiming to comply with the ETS should immediately take steps to bargain with their unionized workforce prior to implementing any policy changes required by the regulation.

© 2022 Proskauer Rose LLP. National Law Review, Volume XI, Number 315
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About this Author

Steven Porzio Labor & Employment Attorney Proskauer Rose New York, NY
Partner

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing...

212-969-3079
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Tony S. Martinez Labor & Employment Attorney Proskauer Rose Law Firm
Associate

Tony Seda Martinez is an associate in the Labor & Employment Law Department and assists clients in a wide range of labor and employment law matters.

Prior to joining Proskauer, Tony attended Rutgers School of Law. While in law school, he interned for the United States Attorney’s Office, the Honorable Judge Esther Salas of the United States District Court for the District of New Jersey, and the Honorable Chief Justice Stuart Rabner of the Supreme Court of New Jersey. In addition, Tony served as a senior notes and comments editor of the Rutgers Law Review...

212.969.3014
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