On November 5, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) to protect workers from COVID-19. The ETS covers employers with 100 or more employees and requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy unless the employer adopts a policy requiring employees to choose either to be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
When it comes to bargaining obligations that may arise under this ETS, the General Counsel for the NLRB weighed in on November 10, 2021, with a new Operations Memorandum. View Memorandum.
The NLRB’s position is that covered employers will 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 an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.
The ETS affects terms and conditions of employment including the potential to affect the continued employment of those who become subject to it. To the extent elements of the ETS do not give covered employers discretion, the employer is nonetheless obligated to bargain about the effects of the decision. Whether a covered employer may implement a mandatory policy prior to a valid impasse or agreement when bargaining over effects will depend on the facts of the situation.
Moving forward on implementation of the ETS at union facilities may require an employer to analyze its collective bargaining agreement and notify the union of its implementation of the new OSHA requirement.