While the country continues to deal with COVID-19 and its variants, unions have had to consider the question of vaccine mandates in the workplace. Our review of statutes and case law has made clear that employers must bargain when implementing a vaccine mandate. What an employer bargains over is determined by the source of the mandate – the federal government or the employer itself.
President Biden first discussed a proposed vaccine mandate in September. Now, most employers find themselves waiting for OSHA to deliver its guidance. This has driven some employers to implement their own mandates. Often, those mandates require all employees be vaccinated or risk losing their jobs.
With employer driven mandates in unionized workplaces, the question becomes whether an employer must bargain with unions over that change. The NLRB has not yet addressed whether a COVID-19 vaccine mandate is a mandatory subject of bargaining, but it seems likely the answer is yes. The NLRB held in 2012 that requiring employees to take an influenza vaccine is a mandatory subject of bargaining. Virginia Mason Hosp., 358 NLRB 531 (2012).
However, former NLRB General Counsel Peter Robb left open the issue of a mandated COVID-19 vaccine in a guidance memo he issued in September 2020. In GC 20-14, Robb suggested that COVID-19 presented an emergency that allowed an employer to act unilaterally. Because Mr. Robb, with his employer-friendly approach, has since been replaced by President Biden, we expect the NLRB to find a statutory duty to bargain over the implementation and effects of a vaccine mandate.
Nevertheless, an employer may suggest it can require vaccines without bargaining. The proposition of a mandated vaccine, however, represents a different condition of employment than, say, a change in PPE. A vaccine requirement affects employees far more than requiring masks in the workplace, and lasts far longer than the length of the emergency. Because of this impact, it seems likely that the NLRB would consider a COVID-19 vaccine, much like an influenza vaccine, to be a mandatory subject of bargaining. In such cases, unions should demand to bargain over the implementation of the vaccine mandate.
If a vaccine is mandated by a government agency, then a union’s ability to bargain changes. Instead of engaging in decisional bargaining (bargaining over the implementation of the vaccine mandate) unions should instead demand effects bargaining. Effects bargaining involves negotiating with the employer over how a vaccine mandate will impact bargaining unit members.
Recently, we have suggested a few points that should be raised with employers if engaged in effects bargaining over a vaccine mandate. Those include:
- Determining whether the vaccine will be administered on-site or providing transportation to those employees who need it to receive the vaccine off-site;
- Providing extra paid time off for employees to receive the vaccine and any required boosters;
- Providing paid time off for any employees who suffer from an adverse reaction to receiving the vaccine;
- Establishing what discipline an employee can expect for refusing a mandatory vaccine;
- Establishing procedures for reviewing vaccine exemption requests on Title VII or ADA grounds.
These are just some of the issues that can and should be addressed when negotiating over a COVID-19 vaccine mandate. Our firm has been dealing with this issue and expects to continue dealing with this issue. If your union needs assistance in negotiating a COVID-19 policy with your employer, you should contact an experienced labor attorney.