NLRB GC Says OSHA’s ETS Will Require Unionized Employers to Bargain Over Implementation

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On November 10, 2021 National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum expressing her office’s views concerning employer bargaining obligations related to OSHA’s Emergency Temporary Standard (ETS) to Protect Workers from Coronavirus. Although the ETS is currently stayed (as discussed elsewhere in this E-Update), unionized employers must keep this guidance in mind if circumstances change. More specifically, if unionized employers hoped that the government’s mandate would provide a blanket exemption from bargaining over the decision to implement the mandate, GC Abruzzo’s memo indicates otherwise.

Briefly, unionized employers subject to the National Labor Relations Act (NLRA) generally have two types of bargaining obligations relating to employee terms and conditions of employment. First, a “decisional bargaining” obligation requires that the employer provide the union with notice of the proposed change to employee working conditions and an opportunity to bargain prior to implementing the change. Second, where an employer may be excused from a decisional bargaining obligation – because, for example, the CBA’s management rights clause gives the employer unilateral authority on the subject, or because changes in the law require the employer’s compliance – the employer may be required to bargain over the effects of the decision, or an “effects bargaining” obligation.

GC Abruzzo’s memo states that the implementation of the ETS will create both decisional and effects bargaining obligations. Where the ETS provides an employer with discretion concerning implementation of the ETS, the employer will have a decisional bargaining obligation. Specifically, an employer will likely have decisional bargaining obligations on the following aspects of the ETS:

  • Vaccination or Weekly Testing – Employers have the option of requiring that employees be vaccinated or submit to weekly testing. Thus, if employers wish to mandate vaccination, GC Abruzzo posits that the employer must first notify and bargain with the union before doing so.
  • Who Pays for Masking and/or Testing? The ETS does not require that employers cover the cost for masks or weekly testing (but review your state and local laws for any such requirements). Accordingly, it is the GC’s view that which party will bear the cost of testing is subject to decisional bargaining.
  • Type of Leave Used for Recovering from Vaccine’s Side Effects – Employers have the discretion whether to require employees to use sick leave or other paid time off (PTO) while recovering from the vaccine’s potential side effects. If an employer wishes to require employees to use such leave, this would also be subject to decisional bargaining with the union. In addition, the cap on what constitutes “reasonable” PTO for employees experiencing vaccine side effects would also be subject to decisional bargaining.
  • Contact Tracing and Treatment of Close Contacts to Positive Cases – The ETS does not provide requirements for an employer to engage in contact tracing, or how it should handle removal of employees who are close contacts to individuals who have tested positive. Rather, employers are recommended to follow CDC guidelines. Thus, whether an employer wishes to remove employees who have been in close contact with positive cases is at the employer’s discretion, and therefore may be subject to a decisional bargaining obligation. (Note: Most employers have had such policies in place since 2020, in which case such an established policy may excuse the employer from now being required to bargain over this subject. But, if an employer changes those requirements as part of the ETS implementation, GC Abruzzo would likely take the view that the employer must bargain over that change.)
  • Weekly Testing for Unvaccinated Employees – The ETS leaves to the employer’s discretion the details of weekly testing. Specifically, who administers the test, and where and when it is administered is a decision for the employer. But, again, it is GC Abruzzo’s view that the decision over these details must be bargained with the union.

Now is an important time to remind employers that the decisional bargaining obligation continues until the parties reach agreement or a good-faith impasse. Thus, an employer does not necessarily need to obtain the union’s agreement prior to implementation, provided the parties reach a good-faith impasse.

In addition, an employer may have an effects bargaining obligation over aspects of its implementation of the ETS. For example, if an employer requires vaccination, how the employer will treat unvaccinated employees – e.g., unpaid administrative leave until a date certain after which termination occurs – is one such subject that could be dealt with during effects bargaining.

For employers, there are important takeaways from GC Abruzzo’s memo. Most notably, it is the NLRB GC’s position that any element of ETS that permits employer discretion is subject to decisional bargaining with the union representing its employees prior to implementation. Given the broad array of subjects that provide employer discretion, employers should begin formulating and presenting proposals to the union prior to implementing the ETS. The NLRB requires that unions be provided with “reasonable” notice in advance of implementation, so employers should provide notice of its proposed implementation as soon as practicable.