Hunton Employment & Labor Perspectives

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).

As we previously reported, the ETS requires employers with 100 or more employees to implement mandatory vaccination policies by early December.  Employers can exempt employees from the mandatory vaccination policy only if the employer also maintains and enforces a policy that requires those employees to wear face coverings at work and submit to regular COVID testing.

The Fifth Circuit Court of Appeals recently issued a stay of enforcement of the ETS, finding that it may exceed OSHA’s emergency rulemaking authority. However, the stay may have limited effect because all challenges to the ETS nationwide will soon be consolidated for review by a single circuit court selected through a multi-jurisdictional lottery. Subsequent review by the Supreme Court of the United States is likely.

Under the National Labor Relations Act (“NLRA”), employers generally have two different types of bargaining obligations with respect to the terms and conditions of employment for employees that are represented by a union: decisional bargaining and effects bargaining.  Decisional bargaining refers to an employer’s obligation to bargain with the union before implementing a change to the terms and conditions of employment.  Effects bargaining refers to an employer’s obligation to bargain about the effects of the decision.

In her memorandum, the General Counsel notes that employers have both types of bargaining obligations with respect to the ETS.  In particular, the memorandum states that “covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment.” Although the memorandum acknowledges the long standing rule that an employer does not have an obligation to bargain about changes to terms and conditions of employment that the employer is required by law to make, the memorandum notes that employers do have to bargain with the union where an employer has certain discretion regarding how to enact the required change.  Here, the ETS allows employers to either mandate vaccination for all employees or require employees to either become vaccinated or undergo regular testing if they refuse the vaccine.  Given this discretion, the General Counsel takes the position that the employer must bargain with the union regarding whether to implement a vaccine mandate or implement a vaccine and testing policy.

In addition to decisional bargaining obligations, the memorandum notes that employers also have an obligation to bargain about the effects of the ETS-policy on employees, including, for example, whether to provide leave to employees who test positive for COVID-19 or how to treat employees that refuse to become vaccinated or submit to regular testing.

Put simply, the General Counsel’s memorandum serves as a clear reminder that employers cannot ignore their bargaining obligations with respect to the ETS.  Though employers are required to implement a ETS-compliant policy, employers have certain statutory bargaining obligations regarding the form of the policy and its effects on employees.