NLRB Addresses Employers’ Obligation To Bargain With Unions Over OSHA’s Vaccination ETS

The National Labor Relations Board’s (NLRB) Office of the General Counsel has released a memorandum detailing its position on employers’ obligations to bargain with unions over the new Vaccination and Testing Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) for larger employers. The ETS applies to employers with 100 or more employees as of November 5, 2021, but is currently stayed. The NLRB’s General Counsel advises that an employer has an obligation to bargain with unions about the ETS in two different circumstances.

First, although the employer does not have to bargain over changes to terms and conditions of employment that are mandated, it must bargain over those aspects of the ETS that are discretionary. The ETS gives employers some choice over how it will implement the vaccine mandate. For example, the ETS allows an employer to choose how it administers the testing procedures for unvaccinated employees. Because testing an employee for COVID-19 before he/she can come to work each week likely affects the employee’s hours and schedule, an employer may be required to bargain with the employee’s union over these testing procedures.

Second, for those components of the ETS that are mandatory, the employer is still obligated to bargain over the effects of the ETS. For example, the ETS requires the employer to remove employees from the workplace if they test positive for COVID-19 or are diagnosed with COVID-19. An employer may be required to bargain with a union over the effects of this removal – such as the possibilities for remote work and/or use of leave time.

If you believe you are covered by the ETS and at least some of your employees have elected to be represented by a union, we encourage you to review the General Counsel’s memorandum and contact counsel to discuss the parameters of your potential bargaining obligations. 

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