The Employer’s Duty to Bargain Over Vaccine/Testing Mandates

When the upcoming OSHA ETS was introduced, the President specifically highlighted an employer’s duty to bargain with collective bargaining representatives regarding the implementation of COVID-19 testing and vaccination.  But what, exactly, is there to bargain when so many legal requirements fall on the shoulders of employers?

Last week, the Acting Associate General Counsel for the NLRB issued guidance to NLRB Regional Directors regarding the bargaining obligations of employers under the ETS.  The General Counsel’s advice manages to be both brief and ambiguous: “[T]he General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment – to the extent the ETS provides employers with choices regarding implementation.”

While employers have no obligation to bargain over changes affecting terms and conditions of employment required by statute, “the employer may not act unilaterally so long as it has some discretion in implementing those requirements.”  The General Counsel points out that the ETS does affect terms and conditions of employment and gives covered employers discretion with regard to implementation of the ETS’s requirements.

In addition, while some of the requirements provide for no discretion, whatsoever, employers are obligated to bargain the impacts their decisions have on terms and conditions of employment to impasse.  This would include wages, insurance, discipline, time off, and many other issues.

So while employers everywhere are looking for guidance on best practices for implementation of vaccination policies, we’re receiving it bit-by-bit from all the affected agencies as the deadline for large employers draws even closer.  Make sure you and your attorney work together both on your vaccine and testing policy, as well as the way that policy is rolled out to employees.  You will receive requests to bargain over the policies, and need to know what, exactly, is within your control, and what needs to be discussed with employee groups.

If you or your organization need assistance with implementing your ETS-compliant policies.  Contact Wiley Reber Law, for legal advice that works.