The recent, rapid spread of the 2019 novel coronavirus (COVID-19) Delta variant has caused many employers to reconsider adopting mandatory vaccine policies. In deciding whether to adopt such a policy, employers must wade through a host of legal and employee relations issues. For union employers, there is one more issue to add to the list: whether the policy needs to be bargained with the union before it can be implemented.
AN OVERVIEW OF AN EMPLOYER’S BARGAINING OBLIGATIONS UNDER THE NLRA
The National Labor Relations Act (NLRA) establishes two types of bargaining obligations: “decisional” bargaining and “effects” bargaining. In the case of decisional bargaining, an employer has a duty to bargain the threshold decision of whether to make a change to a “mandatory subject of bargaining.” Mandatory subjects of bargaining generally include wages, hours and other important terms and conditions of employment. An employer cannot unilaterally change mandatory subjects of bargaining; it must first bargain the decision to make those changes with the union.
Even if an employer does not have an obligation to bargain the decision to make a unilateral change, it usually has a duty to bargain the “effects” of the change. Effects bargaining is much less onerous for an employer because it does not require that the employer make any concessions. An employer need only provide the union with the opportunity to provide input regarding the effects of a particular change.
IS A VACCINE POLICY A MANDATORY SUBJECT OF BARGAINING?
The answer is, “probably.” The National Labor Relations Board (NLRB) has not offered any clear guidance on the specific issue. Its decisions in other cases, however, suggest that the adoption of a vaccine policy is a sufficiently material change to the employees’ terms and conditions of employment such that the policy would need to be negotiated with the union prior to implementation. For example, the NLRB has found that employer drug testing policies are a mandatory subject of bargaining because they require intrusive procedures such as blood, hair and follicle testing. The NLRB also has found that a hospital/employer had a duty to bargain a “flu prevention policy” requiring employees to wear facemasks. It is likely that the NLRB would find that the intrusive nature of a mandatory vaccine policy also would elevate it to the type of decision that first must be negotiated with the union.
With that said, depending on the particular language of an employer’s collective bargaining agreement (CBA), an employer may have an argument that the CBA itself gives the employer the unilateral right to implement a mandatory vaccine policy. This is what is known as the “contract coverage” defense. Employers should note, however, that the contract coverage defense might be short-lived. The defense emerged from a decision, MV Transportation, that was made by the NLRB during former President Trump’s term in office and when the NLRB was controlled by Republican members. Effective Aug. 28, 2021, however, majority control of the NLRB will be shifting to the Democrats. It is likely that the contract coverage defense may be on the new NLRB’s chopping block.
WHAT ABOUT EFFECTS BARGAINING?
Even if an employer does not have a duty to bargain the decision to implement a mandatory vaccine policy, it likely has a duty to bargain the effects of that decision. The effects of the decision may include issues such as whether time off to receive vaccinations will be paid, the availability of paid sick leave for employees who have adverse reactions to the vaccine and other accommodations such as remote work and modified work schedules for individuals who, for religious or medical reasons, cannot get the vaccine.
I AM A UNION EMPLOYER CONSIDERING A MANDATORY VACCINE POLICY, WHAT SHOULD WE DO?
The first step is the easiest: do not implement the policy without pausing to consider whether you have a duty to bargain the decision with the union. Next, contact legal counsel before making any unilateral changes. Even if you believe that your CBA allows you to unilaterally implement a mandatory vaccine policy, those determinations are fact-specific and should be discussed with a labor relations attorney.