For updated information on the ETS, please see the following article: The Supreme Court Blocks the Federal Vaccine Mandate for Large Employers; Greenlights Healthcare Vaccine Mandate.
This past Friday, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the stay on implementing the Emergency Temporary Standard to Protect Workers from Coronavirus (ETS) issued by the federal Occupational Safety and Health Administration (OSHA). The ETS applies to private employers with 100 or more employees in states subject to OSHA regulations. The case is In Re: OSHA Covid Rule, 6th Cir. No. 21-7000.
While further challenges to the ETS and other federal vaccine mandates have already been filed with the U.S. Supreme Court, the ETS is in effect with the lifting of the stay. Also on Friday, OSHA extended the compliance deadline to January 10, 2022. On Monday, the Supreme Court asked the federal government to respond to the numerous requests to stay the ETS by December 30, 2021. Regardless, for unionized employers subject to the ETS, there is a bargaining obligation over its implementation.
The Emergency Temporary Standard
OSHA’s ETS, which took effect on November 5, 2021, requires all large employers (100 or more employees) to develop, implement, and enforce a mandatory COVID-19 vaccination policy or require employees to be tested weekly and wear face coverings in lieu of vaccination. The ETS also requires numerous recordkeeping requirements including determining the vaccination status of all employees. Almost immediately after taking effect, the ETS was challenged in a number of federal courts, and the Fifth Circuit Court of Appeals issued an order staying the ETS. But Friday’s ruling lifted that stay.
Oregon, Washington, California, and Alaska are among the 22 states that have an OSHA-approved state plan for public and private-sector employers. Such states are obligated to have health and safety standards as effective as the federal rules that would apply to both private and public employers. For example, Oregon’s OSHA-Approved State Plan covers most private sector workers and all state and local government workers. Such state rules have not yet been issued and whether Oregon OSHA adopts rules with similar thresholds or the vaccine-or-test options is not yet known.
OSHA has no authority to enforce the ETS in these 22 states with state plans. Employers in Oregon, Washington, California, and Alaska will need to comply with the ETS although perhaps not the January 10, 2021 compliance deadline. A state version of the ETS could be more restrictive and not provide for the same options as the federal ETS. For example, a state could require vaccines and not offer the test option as permitted under the federal ETS.
NLRB Office of the General Counsel Says Private Employers Must Bargain Over OSHA Vaccine Rule
Last month, before the ETS was temporarily stayed, the Office of the NLRB General Counsel (GC) issued guidance on employers’ bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment. See NLRB General Counsel Memorandum OM 22-03 (November 10, 2021). With the lifting of the stay, this guidance is relevant to unionized employers once again.
Bargaining Obligations for Private Employers
The GC’s memorandum takes the position that large employers would be obligated to bargain over the decision of whether to impose a vaccine mandate or the alternative of testing-and-masking for those declining to be vaccinated. The GC’s memorandum emphasizes that an employer may not act unilaterally as regards the ETS because the employer “has some discretion in implementing those requirements.”
The memorandum goes on to note that an employer is also obligated to bargain over the effects of any decision to implement policies to comply with the ETS. Without specifying what effects must be bargained, an employer’s bargaining obligation would presumably include matters such as who pays for the cost of the testing, whether the time an employee uses to get tested is compensable, and discipline for noncompliance, among others.
The GC’s memorandum did recognize that an employer would be relieved of its duty to bargain where a specific change in terms and conditions of employment is mandated. Such would likely be the case for federal contractors subject to the vaccine mandate under Executive Order 14042. That order requires all employees of federal contractors to be vaccinated subject to medical and religious exemptions and accommodation processes. While federal contractors would not have to bargain the decision to require vaccinations, they still have an obligation to bargain over the effects of the vaccination policy.
While the GC’s position is not final on this subject, we expect the National Labor Relations Board (NLRB) to adopt the GC’s conclusions in adjudicating unfair labor practices over implementation of the ETS.
Takeaways for Private Employers with Unions
The GC’s memorandum makes it clear that unionized employers subject to the ETS have both decisional and effects bargaining obligations. Where employers have discretion in how to implement the ETS, for example whether to offer testing in lieu of vaccination, there will be an obligation to bargain with the union over such decision. Additionally, employers will be required to bargain with the union over the effects of policies implementing ETS requirements as discussed above. These dual bargaining obligations mean that employers should provide notice to the union of policy changes required to comply with the ETS, and be prepared to bargain over those changes and their effects.
Private employers subject to OSHA-approved state plans may initiate bargaining now or wait for state standards to be issued. Until a standard is issued under the OSHA-approved state plan, it may be difficult to fully understand what subjects can and must be bargained.
Public Employer Bargaining Obligations
In the public sector, there is limited definitive authority addressing bargaining obligations for vaccine mandates. In Oregon, the Employment Relations Board (ERB) recently held that the Oregon State Police was not obligated to bargain over the decision to mandate vaccines as required by an administrative rule from the Oregon Health Authority that applied to police and health care workers. See Oregon St. Police Officers Assn. v. Oregon St. Police, UP-038-21 (2001). In so ruling, ERB offered no guidance as to effects bargaining, concluding that the union had effectively waived such bargaining before the implementation date for the vaccine mandate.
There has been no ruling yet from the Washington Public Employment Relations Commission (PERC) on bargaining over the decision or the effects of vaccine mandates. However, in an analogous situation, PERC ruled that an employer’s decision to implement a change required by statute is an illegal, non-mandatory subject of bargaining, even if it involves a mandatory subject. See Kitsap County, Decision 13306 (PECB, 2021). That case involved a statutorily-mandated change to filling of vacancies in sheriffs’ offices.
In California, in Regents of the University of California (2021) PERB Decision No. 2783-H, the Public Employment Relations Board (PERB) ruled that the state university system was not required to bargain over its decision to mandate COVID vaccines, ruling that such mandates were beyond the “scope of representation” as defined by the governing statute. PERB was nonetheless clear that there is a duty to bargain over the effects of the decision.
While there may be differing opinions, we expect labor boards in Oregon and Washington to follow the GC’s approach. California, at least in regards to higher education, has taken a slightly different approach. As with the private sector, the better approach may be to wait until the state standard is issued to commence bargaining. Until then, the scope of employers' duty to bargain is uncertain.