NLRB’s General Counsel’s Office Issues Guidance on the Obligation to Bargain Over Implementing OSHA’s COVID-19 ETS

We have reported on OSHA Emergency Temporary Standard (“ETS”), published on November 5th, that mandates that covered employers require their employees to be fully vaccinated against COVID-19 or obtain weekly COVID-19 tests and wear a facemask in the workplace.

Find the new requirement here.

We have also reported on the Fifth Circuit’s order, issued the next day, staying the ETS, citing “cause to believe that there are grave statutory and constitutional issues with the Mandate.” And, we have reported on the Fifth Circuit’s November 12th order extending its stay.

Today, we report on yet another development, the NLRB’s Acting Associate General Counsel’s November 10 memorandum concerning an employer’s duty to bargain with its unions about implementing the ETS. 

According to the Memorandum, covered employers must bargain with their unions over the decision to implement those aspects of the ETS that affect terms and conditions of employment and over which employers retain discretion. Under long-standing Board precedent, an employer is generally relieved of its duty to engage in decisional bargaining where a specific change in terms and conditions of employment is statutorily mandated; however, an employer may not act unilaterally so long as it has some discretion in implementing those requirements. 

The Memorandum concludes that the ETS clearly affects terms and conditions of employment, including the potential to affect the continued employment of employees who are subject to it. The Memorandum also observes that the ETS affords covered employers discretion in implementing certain of its requirements, for example, whether to offer a testing option or impose a strict vaccine mandate. The Memorandum notes that with respect to the aspects of the ETS that allow no employer discretion, employers must bargain over the effects of the mandate, such as where and when testing will occur and who pays for it.
Notably, the Memorandum is silent about collective bargaining agreements that contain specific management rights or workplace safety language that may grant the employer discretion in implementing workplace health and safety rules. If such language exists and is sufficiently broad, the employer may have no decisional bargaining obligations as a condition to implement the ETS.

This is a rapidly-evolving area that is fraught with challenges. Employers should carefully review their collective bargaining agreements and consult with legal counsel regarding their bargaining obligations.

Arent Fox’s Labor & Employment group will continue to monitor this issue. If you have any questions, please contact one of the authors or the Arent Fox professional who usually handles your matters.


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