Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.
The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.
Do we have to bargain, even though OSHA is mandating the changes?
The Board, in its memo, states that employers likely have a duty to bargain with unions in some capacity over policy changes made in accordance with OSHA’s ETS. Generally, employers have a duty to bargain in good faith with unions over decisions impacting the terms and conditions of employment of their represented employees. An employer typically is relieved of its duty to bargain where a particular change is statutorily mandated. However, so long as the employer has some discretion in implementing those requirements, the employer likely may not act unilaterally and must bargain over the decision.
As set forth in the Board’s memo, unionized employers will have to engage in decisional bargaining over the discretionary components of the ETS. Although the Board did not specify which particular components of the ETS it views as discretionary, such components may include the decision of whether to establish, implement, and enforce a policy that mandates vaccination or allows employees to choose whether to be fully vaccinated or provide proof of regular COVID-19 testing and wear a face covering.
Moreover, even if an employer is relieved of its duty to bargain over the decision regarding ETS-related policy changes, the employer may still have a duty to bargain over the effects of the policy change decision. In the context of OSHA’s ETS, expected areas of effects bargaining may include the consequences for failing to comply with a vaccination or testing mandate, which party will bear any necessary costs for vaccination and/or testing, or employee pay when obtaining vaccination, completing COVID-19 testing, or being removed from the workplace for failing to submit a negative test as required under the ETS.
A duty to bargain over any ETS-related decision and/or its effects may already be satisfied, in whole or in part, through existing labor agreements between the employer and the union. Employers should determine whether any existing collective bargaining agreements or other labor agreements include applicable provisions, such as those provisions addressing management rights and workplace health and safety.
Deadlines under OSHA’s ETS provide for limited time for bargaining
Employers covered by OSHA’s ETS have until December 5, 2021 to comply with all non-testing requirements under the ETS, and until January 4, 2022 to comply with the requirements for regular COVID-19 testing of employees who have not provided adequate proof of full vaccination. (Note that, at the time of this article, OSHA’s ETS is subject to the temporary stay ordered by the U.S. Fifth Circuit Court of Appeals on November 6, 2021, and subject to other litigation pending in several other federal circuit courts of appeal.)
Given these deadlines under the ETS – not to mention the disruptions and delays that typically occur during the holiday season, which is now commencing – employers and unions alike will have limited time to complete any necessary bargaining.
In light of this, employers are advised to consult with labor counsel as soon as time permits to determine whether there exists a duty to bargain in their circumstances and, if so, to formulate a suitable and effective approach for completing the bargaining process.