Unionized employers must bargain about COVID-19 vaccine policies

On November 10, 2021, the National Labor Relations Board’s (NLRB) general counsel (GC) published operations management memo 22-03 about the duty to bargain over issues related to the Occupational Safety and Health Administration’s (OSHA) new COVID-19 vaccination rules. OSHA’s emergency temporary standard (ETS) requires employers with 100 or more employees to implement a mandatory vaccine or vaccine-or-test policy. Not surprisingly, the memo says unionized employers must bargain about the policies.

What NLRB memo says

Thae GC’s memo advises the ETS’s discretionary elements are mandatory subjects of bargaining. In addition, to the extent the standard doesn’t provide discretion, covered employers are obligated to bargain about the required policy’s effects.

In other words, absent a clear and unmistakable waiver of the right to bargain over COVID-19 safety procedures and their effects, covered employers must provide unions with notice and an opportunity to bargain before implementing their mandatory vaccine or vaccine-or-test policy. An inexhaustible list of subjects that might be raised in bargaining include: