The Equal Employment Opportunity Commission (EEOC) recently provided guidance suggesting that employers could permissibly require their employees be vaccinated for Covid-19. While the guidance provides that certain employees are entitled to accommodations that will necessarily limit the scope of such mandate, the EEOC did not discuss potentially more restrictive limitations imposed by labor law on employers with represented workforces.
Most labor laws, including the National Labor Relations Act (NLRA), presume that matters which affect the terms and conditions of employment are mandatory subjects of bargaining. (See Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB (D.C. Cir. 1980))
Under this framework, policies that relate to employee health and safety are presumptively within the scope of representation and subject to negotiation. As a result, a decision that requires that certain employees be vaccinated as a condition of their employment will likely first require employers to bargain with labor organizations who represent their employees.
Prepare to Defend Application of Exception to Bargaining Obligations or to Bargain
Under most labor laws, exceptions to an employer’s obligation to bargain mandatory subjects are few in number and apply in only very limited circumstances.
Where an exception to the bargaining requirements may apply to a specific group of employees, an employer should carefully evaluate the exception and its potential application to the employees at issue before unilaterally adopting a decision to mandate vaccination. (See In Re Virginia Mason Hosp. (2011) and Peerless Publications (1987))
Under these circumstances, an employer should prepare to defend its application of the exception in the likely event that the employee organization representing the employees at issue challenges the employer’s policy and its unilateral adoption of such decision. The employer may need to defend itself against an unfair labor practice charge and/or a request for injunctive relief to prevent the employer’s implementation of such decision.
Where there is no clear exception under applicable labor law that would exempt the employer from bargaining a decision to require mandatory vaccinations, employers should prepare to negotiate the decision with the affected employee organizations before implementing such a decision.
Start Negotiations as Soon as Possible
Employers subject to bargaining should not wait until the vaccine is available for its employees to begin negotiations.
Given the nature of the subject and the some employees’ likely opposition to vaccination, employers should prepare for protracted negotiations by providing notice of their intention to require vaccinations to the affected employee organizations as soon as possible after arriving at the decision.
Providing notice at an early juncture will demonstrate the employer’s good faith and will provide the parties as much time as possible to negotiate a mandatory vaccine requirement before the vaccine becomes available for the employees at issue.
Address the Decision and Effects of the Decision
In addition to negotiating the underlying decision to require vaccination, employers that elect to require vaccinations should also prepare to negotiate the effects of the vaccination decision.
One of the issues that employers will need to negotiate is how to treat employees who elect to exercise their rights under the Food, Drug & Cosmetic Act (FD&C Act) to refuse vaccination. The FD&C Act provides a statutory right to refuse vaccination, but does not provide a process for accommodating employees who elect to exercise such right. Employers should not summarily terminate such employees, but rather should consider whether such employees can continue to work.
This is similar to the reasonable accommodation process in that it evaluates whether the unvaccinated employee is a risk to the health and safety of the workplace. This may include telecommuting, leaves of absence, use of PPE or respirators or other ways to enable the employee to work.
Other effects that employers should prepare to negotiate include such matters as the employer’s recordkeeping policy related to employee vaccination records and employee access to such records.
Most employers who choose to require that their employees be vaccinated will need to negotiate that decision. Employers should start such negotiations early and prepare to negotiate not only the underlying decision but also the negotiable effects of such decision.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Peter Brown is a partner in the Los Angeles office of Liebert Cassidy Whitmore (LCW) and chair of the firm’s Labor Relations and Wage and Hour practice groups.
Alex Volberding is an associate in LCW’s Los Angeles office where he provides assistance to clients in labor relations matters as well as employment law.