On November 10, 2021, Joan A. Sullivan, acting associate general counsel of the National Labor Relations Board, released Operations Management Memorandum 22-03 (OM 22-03) concerning bargaining obligations under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus (ETS) (OSHA’s “vaccinate or test” mandate). The guidance contained in OM 22-03 suggests that while the NLRB will not impede the ETS, it will ensure that unions have a role in determining how the ETS is implemented in unionized workplaces.
Here is a high-level summary of OM 22-03:
- OM 22-03 briefly summarizes the scope and key requirements of the ETS, including that it covers employers with 100 or more employees and requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination or testing policy.
- As of the date of the OM 22-03, enforcement of the ETS was subject to a stay issued by the U.S. Court of Appeals for the 5th Circuit.
- OM 22-03 affirms that the NLRB will maintain its long-standing position that employers are not required to bargain the decision to implement specific statutorily mandated changes in terms and conditions of employment unless the employer is afforded some discretion in implementing those requirements.
- The Office of the General Counsel believes that the ETS impacts terms and conditions of employment and gives covered employers discretion in implementing certain of its requirements.
- Even where other requirements of the ETS are not discretionary and thus not subject to decision bargaining obligations, employers must still bargain the effects of the decision upon request.
From this Memo we can glean that certain discretionary elements of the ETS, such as whether to adopt the COVID-19 vaccination requirement or the testing requirement will be subject to decision bargaining obligations. Additionally, unions will likely attempt to demand effects bargaining over ETS-related subjects such as time off for employees in the bargaining unit to receive vaccinations and/or complete testing, onsite vaccination/testing programs, consequences for employees who refuse to be tested or vaccinated, what constitutes acceptable proof of vaccination or negative test results, and the manner in which proof of vaccination or negative test results will be maintained in the employee’s records.
As a practical matter, the extent of the bargaining obligation will be determined, in part, by the terms of collective bargaining agreement(s) and the scope and terms of pre-existing COVID-19 policies. Other considerations that are likely to go into the drafting of ETS-related COVID-19 policies include operational and staffing needs, the resources required to maintain a testing and/or vaccination program, and the individual employer’s labor relations climate. The guidance does not speak to whether the regions should apply the “contract coverage” standard or the general counsel’s preferred “clear and unmistakable waiver” standard when determining if the parties’ collective bargaining agreement gives management the right to unilaterally implement “shot-or-test” terms.
Overall, the Memo does not break legal ground, as long-standing Board law generally allows employers to comply with government mandates while requiring bargaining over discretionary aspects of implementation. It does, however, offer employers a reminder about such obligations as they navigate how they will carry out the new federal requirements.