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December 06, 2021 Articles

NLRB Issues Guidance on COVID-19 Vaccination Requirements

A board memorandum addresses the pandemic in the context of the vaccination and testing protocols established by OSHA’s recent emergency temporary standard.

By Jerry M. Cutler

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The National Labor Relations Board’s (NLRB) Office of General Counsel recently published an operations memorandum (OM 22-03; Nov. 10, 2021) examining the duty to bargain over COVID-19 vaccination and testing requirements. The memorandum addresses this issue in the context of the vaccination and testing protocols established by the recent emergency temporary standard (ETS) of the Occupational Safety and Health Administration (OSHA). Under the ETS, employers with 100 or more employees must implement a COVID-19 vaccination policy that requires employees to be vaccinated or, in lieu thereof, to undergo weekly COVID testing and wear face coverings while in the workplace. The ETS also requires employers to provide employees with reasonable time off from work with pay to receive vaccinations and recover from any resulting side effects.

One might assume that the general counsel’s analysis of the employer’s “duty to bargain” would be guided by the NLRB’s 2019 ruling in MV Transportation (368 NLRB No. 66), which considers whether the collective bargaining agreement authorizes the employer to unilaterally adopt or revise a policy. Such an assumption is likely incorrect, however, given that the general counsel recently issued separate guidance characterizing MV Transportation as a departure from the NLRB’s longstanding rule that bargaining was required absent a “clear and mistakable” waiver of the right to bargain (GC 21-04; Aug. 12, 2021).

Against this somewhat uncertain backdrop, the general counsel’s memorandum advises that employers have a duty to bargain with their unions over any discretionary aspects of the ETS. Such discretionary aspects may include the requirement that employees receive COVID vaccinations instead of being regularly tested, or that employees pay for the cost of COVID testing. The memorandum also explains that employers may have a duty to bargain over the effects of non-discretionary aspects of the ETS. Employers may therefore be required to bargain over matters such as disciplinary consequences for employees who fail to comply with a vaccination policy, or whether employees are entitled to paid leave for absences during periods of non-compliance.

The ultimate impact of the ETS will be decided by the federal appeals courts, and potentially the U.S. Supreme Court, where legal challenges to its enforcement are pending. But regardless of the outcome in the courts, many unionized employers will likely move forward with vaccination requirements. The contours of an employer’s duty to bargain will therefore depend on whether the NLRB applies MV Transportation or some other analytical framework in reviewing employer decisions to implement vaccination requirements, and how deferential the appeals courts are to the NLRB’s reasoning and rulings in these cases.

Jerry M. Cutler is senior vice president and general counsel at The New School in New York, New York. He is also a cochair of the Litigation Section Employment & Labor Relations Law Committee.

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