On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) on COVID-19 vaccinations. In summary, the ETS provides that employers with at least 100 employees must either mandate COVID-19 vaccinations of their workforces or require unvaccinated employees to wear face coverings and undergo weekly COVID-19 testing. Employers covered by the ETS will be required to have a compliant policy by Dec. 5, 2021 and will be required to start enforcing the weekly COVID-19 testing requirements by Jan. 4, 2022.
Or maybe they won’t. The announcement of the ETS spawned a rash of lawsuits seeking to put a stop to OSHA’s enforcement of the ETS. Those lawsuits will be consolidated in the near future before a single federal court, to be decided by lottery. But in the interim, the federal Court of Appeals for the Fifth Circuit issued an order on Saturday, Nov. 6, temporarily suspending the ETS. That order may or may not be lifted once the cases are consolidated.
If you’d like a little more confusion sauce with your steaming platter of uncertainty, you’re in luck. Several states have recently adopted legislation restricting private employers to various degrees in regard to requiring their employees to be vaccinated. Plus, some states have their own occupational health and safety programs, and they have 30 days to decide whether to adopt OSHA’s ETS.
So, basically, wow.
What does all this mean for unionized employers? Do they have to bargain over the ETS on top of everything else? Like most legal questions, the answer is a cross between “sometimes,” “maybe” and “it depends.”
While unionized employers generally don’t have to bargain with a union over complying with legal requirements, they can be required to bargain if the law allows the employer to use discretion in deciding how to comply. In this regard, OSHA’s ETS leaves plenty to the imagination. First and foremost, as noted above, the ETS allows employers to choose between: (1) requiring all their employees to be fully vaccinated (subject to disability and religious accommodation obligations) or (2) requiring unvaccinated employees to wear face coverings and submit to weekly COVID-19 testing. But that’s not all. The ETS also allows employers to decide how noncompliant employees will be treated (i.e., discharged or placed on a leave of absence), whether to provide on-site COVID-19 testing, how to collect vaccination information, whether to pay for COVID-19 testing, etc., etc. In short, there are a number of issues on which employers will have flexibility under the ETS, meaning that they may have a duty to bargain in regard to employees represented by a union.
That’s a lot to chew on, and it may be tempting to see how the legal issues resolve before investing the time and energy needed to decide whether and how to proceed in implementing a new policy to comply with the ETS. But bargaining can take some time. A unionized employer that waits for the legal landscape to become clearer therefore may end up in a “time crunch” if the ETS compliance deadline ultimately doesn’t get moved. To avoid that unpleasant outcome, those employers should consider taking the following steps as soon as possible:
- Review all applicable collective bargaining agreements (CBAs) for language that allows the employer to adopt health and safety rules and/or other workplace requirements. Typically, such language is found in the management rights article of a CBA, but every CBA is unique. If the CBA includes language allowing the employer to adopt such rules, the employer’s bargaining obligation may be limited or even eliminated (depending on the specific language in the CBA).
- Notify the union that the employer is planning to implement a new policy in accordance with the ETS. The notice should include the intended implementation date for the new policy (no later than Dec. 5, 2021 for everything other than testing) and ask for the union’s available dates if the union wishes to “discuss” the policy prior to implementation. (The employer should avoid terms like “bargain” and “negotiate” if the CBA provides the employer with the right to adopt new policies.) Ideally, the notice to the union should include an initial draft of the new policy. If the new policy is not ready for circulation, however, the employer should include a description of the general parameters that the company intends to implement and provide a draft policy as soon as possible thereafter.
- If the union responds with a request to discuss the policy, the employer should meet with the union at the earliest opportunity to understand the union’s position regarding the policy’s various elements. If the CBA does not include language allowing the employer to adopt policies unilaterally, the employer should exchange written proposals with the union to establish a bargaining record (as is the case in typical contract negotiations). Even where the CBA permits unilateral policy implementation, such discussions may still be helpful because the union may offer suggestions or identify issues that the employer has not previously considered.
- On the other hand, if the union declines to meet or otherwise does not respond to the notice, the employer will be able to argue that it satisfied any obligation it may have had to provide the union with notice and an opportunity for discussion. Nonetheless, the employer should update the union in writing as its plans continue to develop (i.e., if a specific testing service is selected, etc.), and particularly if there are changes in how the employer intends to proceed.
Taking the above steps will put a unionized employer in a well-prepared position to move forward with compliance efforts if the ETS, and its Dec. 5 and Jan. 4 deadlines, withstand the various pending legal challenges.
Given the potential need for bargaining over ETS compliance issues, unionized employers can avoid a future time crunch by taking proactive steps toward compliance as they await clarity on the associated legal landscape.