January 20, 2022

Volume XII, Number 20

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NLRB General Counsel Issues Guidance on Bargaining Obligations under OSHA ETS

On November 10, 2021, the NLRB General Counsel issued a memorandum discussing the bargaining obligations imposed on covered employers under OSHA's Emergency Temporary Standard to Protect Workers from Coronavirus ("ETS"). Although the U.S. Court of Appeals for the Fifth Circuit has issued a stay on the ETS, the memorandum was nonetheless released to "offer guidance to parties, practitioners and the general public as needed."

The ETS describes the "minimum" requirements regarding vaccinations, vaccination verification, face covering, and testing to prevent the spread of COVID-19 in the workplace. In the memorandum, the General Counsel takes the position that certain aspects of the ETS affect the terms and conditions of employment and thus impose bargaining obligations on employers whose employees are represented by a union. For example, the ETS authorizes mandatory vaccinations or in the alternative requires employees to be regularly tested and wear a mask. Given that an employer has some discretion in how it implements the OSHA requirement, the employer must bargain with the union on how they may affect the terms and conditions of employment. As the memorandum notes, an employer "may not act unilaterally so long as it has some discretion in implementing" statutory requirements.

For areas in which the ETS does not provide discretion in its implementation, the General Counsel asserts that covered employers must still bargain the effects of the decision prior to implementing the changes. For example, the ETS requires covered employers to support COVID-19 vaccination by providing employees reasonable time to get the vaccine, including up to four hours of paid time, as well as reasonable time and paid sick leave to recover from side effects. Covered employers must also determine the vaccination status of each employee and require each vaccinated employee to provide acceptable proof of vaccination status. Although a covered employer can unilaterally implement these ETS mandates without bargaining, it will have to bargain over the effects of the policies, such as the consequences for employees who fail to comply.

It is thus prudent for employers with union-represented employees to remain vigilant of their bargaining obligations under the ETS, as their compliance efforts may potentially expose them to unfair labor practice charges by a union for failing to bargain in good faith.

© 2022 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XI, Number 316
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About this Author

Ahmad Chehab Employment Attorney Miller Canfield
Senior Attorney

Ahmad Chehab focuses his practice on employment law, including advising and representing employers in collective bargaining, labor arbitrations and contract negotiation. Ahmad also has experience directing and conducting investigations of employee misconduct and developing and coordinating staff training programs. 

Ahmad has handled litigation matters in state and federal courts, as well as in various administrative agencies including the U.S. Equal Employment Opportunity Commission; the Michigan Department of Civil Rights; the U.S. Department...

313-496-7504
Robert T. Zielinski Labor & Employment Attorney Miller, Canfield, Paddock and Stone Chicago, IL
Principal

Robert T. Zielinski provides creative and effective representation and advice in resolving the multitude of issues that arise in today’s complex employment relationships.

This includes, but is not limited to, union organizing, negotiations and arbitrations; litigation of individual or class employment claims over discrimination, wages, benefits and so forth; and proactive advice on managing situations to avoid post-decision disputes.

312-460-4216
Leigh M. Schultz Attorney Labor and Employment Lawyer Miller Canfield
Principal

Leigh focuses her practice on labor and employment consultation and litigation.

She provides both public and private sector employers of all shapes and sizes, and in a variety of industries, with advice and counsel on day-to-day employment- and labor-related issues. In addition to acting as a risk manager and ensuring clients' compliance with employment and labor laws, Leigh regularly defends employers against lawsuits and administrative charges filed with the Equal Employment Opportunity Commission (EEOC) and state civil rights agencies by current, former and...

269-388-6810
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