As we previously discussed, the ETS mandates, inter alia, that employers with 100 or more employees create and implement a mandatory COVID-19 vaccination policy that requires its employees to either be vaccinated against COVID-19 or submit to weekly testing and wear a face covering. In the memo, the GC recognizes that employers need not bargain over changes in terms of conditions of employment that are mandated by the ETS. However, it reminds unionized employers who become covered by the ETS that they must nonetheless bargain in two instances:
- First, to the extent the ETS “gives covered employers discretion in implementing certain of its requirements,” employers must bargain over such implementation decisions. The GC does not identify which facets of the ETS are discretionary, but they may include, for example: (i) whether to choose a “hard” mandate (mandating vaccination unless an employee has a medical/religious exemption) or a “soft” mandate (allowing employees to choose, for any reason, whether to be vaccinated or undergo weekly testing); (ii) who pays for testing or face coverings; (iii) how testing will be administered, if applicable; or (iv) the availability of PTO for any side effects employees may experience from the vaccine.
- Second, the memo reminds employers that even where the ETS does not allow discretion over implementation, unionized employers must nonetheless bargain over the effects of their decisions. For instance, employers may need to bargain over the consequences for employees who fail to comply with an employer’s ETS policies.
This guidance comes despite the U.S. Court of Appeals for the Fifth Circuit’s November 10 order staying enforcement of the ETS (discussed here). On November 16, the U.S. Court of Appeals for the Sixth Circuit won the lottery to handle the consolidated case addressing challenges to the ETS, but it is anticipated that the U.S. Supreme Court will ultimately decide the issue. While the fate of the ETS remains to be seen, the NLRB has made clear that employer vaccination policies – whether under the ETS or self-imposed – carry bargaining obligations. Importantly, the NLRB’s guidance deals exclusively with employers who may be covered by the ETS. Employers who wish to implement mandatory vaccination policies while the ETS is stayed (and are not otherwise required by law to implement vaccine mandates in the workplace) would have a duty to bargain with their unions over the decision to implement such policies.
Authored by George Ingham, Dave Baron, and Shannon Finnegan*.
Shannon Finnegan is a Law Clerk in the New York office.