Department of Labor’s ETS Will Trigger Employers’ Bargaining Obligations, Per NLRB General Counsel

National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memorandum explaining her view of employers’ bargaining obligations in response to the US Department of Labor Occupational Safety and Health Administration’s Emergency Temporary Standard to Protect Workers from Coronavirus. According to Abruzzo, any issue involving employer discretion is subject to decision bargaining. The Emergency Temporary Standard may also trigger effects bargaining obligations for non-discretionary issues.

OM Memo 22-03

On November 10, Abruzzo issued Operations Management Memorandum 22-03, “Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers From Coronavirus” (OM Memo 22-03), which sets forth the General Counsel’s position on employer bargaining obligations stemming from the Emergency Temporary Standard (ETS). As Morgan Lewis’s COVID-19 Task Force has covered extensively, the Department of Labor’s Occupational Safety and Health Administration issued the ETS on November 5, 2021, establishing binding requirements for certain employers to protect employees from the spread of COVID-19 in the workplace. The ETS, which applies to employers with 100 or more employees, most notably requires employers to adopt a mandatory vaccination requirement, or subject employees to weekly testing, but covers a range of other issues as well, including establishing a written vaccine policy, verifying and maintaining records of the vaccination status of the workforce, and offering paid time off for vaccination. Employers must comply with all ETS provisions by December 6, 2021, except for the “vaccination or testing” deadline, which requires employees to have received their final dose of a vaccine series by January 4, 2022, or be subject to weekly testing.[1]

OM Memo 22-03 briefly clarifies the General Counsel’s position on bargaining obligations related to the ETS in several ways. First, the General Counsel makes the obvious but legally significant point that the ETS affects employees’ terms and conditions of employment, triggering bargaining obligations. Second, OM Memo 22-03 highlights the distinction under the National Labor Relations Act between decision and effects bargaining obligations. Decision bargaining requires the employer to give the union notice and the opportunity to bargain over the underlying decision to take a given action. In contrast, in an effects bargaining situation, the employer can unilaterally decide to act, but must give the union notice and the opportunity to bargain over any impact (or effect) of implementing the decision on the employees’ terms and conditions of employment. Third, even though the ETS is federally mandated, OM Memo 22-03 asserts that any aspect of the ETS that grants employers discretion on implementation is subject to decision bargaining. Finally, Abruzzo states that employers still possess an effects bargaining obligation for any non-discretionary aspect of the ETS.

Aspects of the ETS Likely to Trigger Bargaining Obligations

OM Memo 22-03 explicitly (and unfortunately) refuses to provide any guidance on which ETS requirements impose bargaining obligations on employers, stating instead that “the General Counsel does not offer advisory opinions and each case stands on its own facts.” Nevertheless, Morgan Lewis has identified the following issues that likely trigger bargaining obligations based on OM Memo 22-03:

• Whether to adopt a mandatory vaccination policy or rely on weekly testing, and for which parts of an employer’s workforce.
  • While the ETS describes vaccination as the “preferred compliance option,” employers have the discretion to choose whether to require vaccination.
• Paying for COVID-19 testing costs or costs associated with the face covering mandate for unvaccinated employees.
  • The ETS does not require employers to pay for testing or face coverings (subject to state or local law), providing employers discretion as to how the costs are allocated.
• Whether the employer will engage in contact tracing or require close contacts to be removed from the workplace following an employee testing positive for COVID-19.
  • These steps are not required by the ETS, which only recommends that employers follow CDC guidelines.
• Whether paid time off (PTO) for any side effects of the COVID-19 vaccine runs concurrently with existing sick time or other generic PTO.
  • Unlike time spent actually receiving the vaccine (which cannot run concurrent to any existing leave), the ETS grants employers the discretion to require employees to use existing sick time or generic PTO to cover time spent recovering from any side effects of the vaccine.
• Administration of weekly testing for unvaccinated employees.
  • Bargainable choices for employers here include what type of test will be used, who will administer the test, where it will be administered, who, if anyone, will observe administration of the test, and when the test will be administered.
• How employees will be notified of the requirements of the ETS and receive other required communications.
  • While employers must give employees notice of the ETS and related employer policies, the ETS gives employers flexibility regarding how to convey the required information to its workforce (or an employee representative—i.e., a union if one represents employees).
• The cap on “reasonable” PTO for any side effects of the COVID-19 vaccine.

Employer Takeaways

• The fact that covered employers must comply with the ETS does not absolve employers of bargaining obligations as they prepare to implement protocols to satisfy the ETS’s requirements, because the ETS leaves many issues open to employer discretion and thus a bargaining obligation.
• It is the General Counsel’s position that all elements of the ETS that permit employer discretion are subject to decision bargaining, with effects bargaining required for non-discretionary issues.
• Given the above position outlined by OM Memo 22-03, employers would do well to assume the entire ETS triggers either or both decision or effects bargaining, and thus should quickly formulate and present an initial position on ETS implementation to unions representing employees in the workforce.
• Employers must give unions reasonable notice and an opportunity to bargain over changes stemming from the ETS, under well-established law. Given the short period before the ETS’s requirements must be implemented, bargaining need not be protracted. While the National Labor Relations Board (NLRB) has not established a bright-line standard for determining what constitutes “reasonable” notice, the NLRB has found two to three weeks’ notice to be reasonable in circumstances where swift action is required.
• Employers, therefore, should move quickly to notify unions of the employer’s deadline for implementing ETS-related changes (for practical reasons, an employer’s internal implementation deadline will likely be several days before the December 6, 2021 and January 4, 2022 deadlines), ensuring that the union has two to three weeks to bargain if it chooses to do so.
• The ETS continues to face challenges in federal courts, while numerous state legislatures have passed or are considering legislation impacting the ability to mandate COVID-19 vaccines. Morgan Lewis’s COVID-19 Task Force is tracking these developments and will continue to issue regular updates.
• At over 400 pages long, the ETS is complex, and bargaining over ETS requirements will have important consequences for the workforce. Interested parties should contact a Morgan Lewis attorney with any questions relating to these quickly evolving issues.

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Contacts

If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Nicole Buffalano
Douglas Hart
Harry Johnson
Jason Mills

Philadelphia
Joseph Ragaglia
Steven R. Wall

Washington, DC
Daniel Bordoni
Jonathan Fritts
Sharon Perley Masling
Philip Miscimarra
Jonathan L. Snare