Recently, in Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board considered whether a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a flu-prevention policy that required nurses to wear a mask if they refused to be immunized against influenza. In doing so, the Board reversed the administrative law judge’s (ALJ) holding that the hospital’s decision to implement the policy was permissible because it went to the hospital’s “core purpose” of protecting its patients’ health and was narrowly tailored to achieve its purpose.
The employer, which operates an acute care hospital, employed approximately 600 registered nurses in an overall group of approximately 5,000 employees. Although the hospital attempted to implement a new policy requiring its entire workforce to be immunized against the flu, an arbitrator and federal courts struck down the policy. Faced with arbitral and court holdings that it could not require employees to be immunized, the hospital notified the union that it intended to require non-immunized nurses either to wear a protective facemask or take antiviral medication. After a series of written communications between the parties, the hospital notified nurses that all non-immunized nurses working in patient care areas were required to wear masks.
In finding that the “core purpose” exception did not apply, the Board distinguished Peerless Publications, which it said “was decided within the unique context of the newspaper industry and is of limited applicability outside of the narrow factual situation presented in that case.” In Peerless, the Board considered whether a newspaper could lawfully implement a code of ethics for employees without engaging in mandatory bargaining because the “subject matter” of the rule went to “the protection of the core purposes of the enterprise” (i.e., editorial integrity of a newspaper). By contrast, according to the Board, the hospital’s flu-prevention policy was nothing like the code of ethics at issue in Peerless (a decision in which the Board found that implementation of the ethics code nevertheless violated the NLRA because the rule was not, among other things, narrowly tailored to achieve the employer’s objectives). Rather, the Board held that the Act “does not establish a narrower duty to bargain for health care employers” and noted the absence of any evidence to suggest that “collective bargaining – which inevitably implicates how, when, and by whom patients are cared for – has interfered with the core purposes of hospitals.” Thus, the hospital could not use the “core purpose” analysis in Peerless to avoid its duty to bargain. However, the Board remanded the case to the ALJ to consider the hospital’s remaining defenses (e.g., that federal and state law required it to implement effective policies to control infection and communicable diseases and that the union waived its right to bargain over implementation of the policy.).
It remains to be seen whether the ALJ will accept the hospital’s remaining defenses to its obligation to bargain. Regardless, even if the ALJ agrees that the hospital was not required to bargain the decision to implement the flu-prevention policies, it is anticipated the judge will agree with the union’s contention that the hospital was required to bargain the effects of such a rule on non-immunized nurses. With the flu season approaching unionized healthcare institutions must be careful to balance their legitimate concerns about communicable diseases and the Board’s recent holding in Virginia Mason Hospital and should seek advice from experienced labor counsel before implementing any new communicable disease policies in their hospitals.