On November 10, 2021, the National Labor Relations Board’s (NLRB) General Counsel’s office released Memorandum OM 22-03 regarding bargaining obligations arising from the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard to protect workers from Coronavirus (ETS).

While the Fifth Circuit temporarily stayed the ETS, pending its review, employers with 100 or more employees must decide whether to have a mandatory vaccine policy by which all employees must be vaccinated (subject to reasonable accommodation under religious and disability non-discrimination laws) or permit all unvaccinated employee to undergo weekly testing for COVID-19 and wear a face covering at work. As the ETS is written, the employer must draft and issue a vaccine policy by December 6, 2021. This deadline hinges on the Fifth Circuit lifting its stay prior to December 6. 2021. For more information about the details of the ETS, please see our November 4, 2021 alert.

In general, unionized employers can have two kinds of bargaining obligations: in decisional bargaining, the employer gives the union notice and the opportunity to bargain about a decision it is considering. In effects bargaining, the employer must be available to bargain about the consequential effects of any particular decision. Although unionized employers typically are not obligated to bargain over the decision to comply with statutorily mandated employment conditions, the Agency’s memorandum indicates that there are certain components of the ETS that afford employers some degree of discretion and those discretionary decisions must be bargained. For example, some discretionary decisions required by the ETS that might trigger bargaining obligations include:

• The option to implement a mandatory vaccine policy or to permit unvaccinated employees to work subject to weekly testing and wearing face coverings.
• The amount of time the employer must give employees to recover from side effects of the vaccine.
• Which party will bear the cost of testing for unvaccinated employees.
• The method for the maintenance of records of employee vaccination status.
• The implementation of the face covering requirement for unvaccinated employees if the employer opts to permit unvaccinated workers to test weekly and wear a face covering.

Although a collective bargaining agreement’s management rights clause may afford an employer more leeway in drafting and effectuating a vaccine policy, the Agency’s memorandum instructs that “the employer is nonetheless obligated to bargain about the effects of the decision.” (emphasis added). This creates a wide range of additional issues that employers may be obligated to address with their employees’ representative. The Agency mentions, but does not resolve, the question of whether effects bargaining must be complete before implementing changes designed to comply with the ETS, and simply notes that it “will depend on the facts of any given situation.”

Despite the Fifth Circuit’s temporary stay of the ETS, employers should continue to monitor our alerts to stay abreast of any changes and developments.