On Nov. 10, 2021, the General Counsel’s Office of the National Labor Relations Board issued a guidance memorandum [OM 22-03] dictating employers and unions will be required to engage in decision bargaining over discretionary aspects of vaccination policies required by the OSHA Emergency Temporary Standard mandating COVID vaccinations and testing.

Under the OSHA Emergency Temporary Standard (ETS), employers must create Vaccination and Testing Policies by Dec. 6, 2021. Employers are required to communicate their policy to OSHA within four hours of a request by the Agency. Employers must be prepared to demonstrate that their employees have either been vaccinated or are being tested on a weekly basis for the virus by Jan. 4, 2022. However, where an employer has the discretion to comply with the ETS in dictating the terms and conditions of employment in the policy, the General Counsel’s Office has made it clear the employer may not act unilaterally to dictate those policies but must provide notice of the policy and an opportunity to bargain over those terms prior to implementing the policy. This presents a significant challenge to employers who desire to pass on the costs of COVID testing and masking to employees as the ETS expressly permits the employer to determine. One would presume some employers will desire to pass along those costs to employees who refuse to be vaccinated and similarly, one would presume employees do not want to be burdened with those costs.

With only weeks to prepare vaccination and testing plans, and less than two months to comply with those plans and the ETS, it is difficult to imagine all employers and employee representatives will have fulfilled their duty to negotiate agreements without assuming significant risks. Employers who fail to implement plans face approximately $14,000 fines per employee for each week the employee works without being vaccinated or tested for the virus.  Similarly, employees who decline a vaccination and testing face termination from employers who desire to avoid exposure to fines. Currently, neither the ETS nor federal labor law recognizes a safe harbor for parties who are not in compliance with the ETS because they are fulfilling their duty to bargain.

The General Counsel’s Office Memorandum also makes it clear that even where the employer does have mandatory authority to comply with federal law or regulation, such as in implementing a mandatory vaccine policy, that the employer continues to have a duty to engage in “effects” bargaining to negotiate with a union over the repercussions of the implementation of the policy even where they had no duty to negotiate over the decision to implement the policy.  Again, this is consistent with long standing federal labor law.

Currently, the Fifth Circuit Court of Appeals has prohibited the implementation or enforcement of the OSHA ETS. A federal court multi-district panel is set to conduct a “lottery” to determine which circuit court will entertain the remainder of all other petitions challenging the ETS. The decision in the Fifth Circuit was resolved expeditiously and continuing litigation will likely be treated with similar urgency in the circuit court selected by lottery.

If you have any questions or would like additional information, please contact your Dinsmore attorney.