On November 10, 2021 the Office of General Counsel of the National Labor Relations Board issued a memorandum advising employers and unions about their duty to bargain regarding the Emergency Temporary Standard’s (“ETS”) requirements. The ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS also requires paid time off for workers to get vaccinated and to allow for paid leave to recover from side effects.
The GC memorandum describes the general rule that an employer is relieved of its duty to bargain a specific change in terms and conditions of employment when it is statutorily mandated. An employer may not act unilaterally, however, so long as it has some discretion in implementing those requirements. The GC clearly signals that the ETS affects terms and conditions of employment, leaving it to the employer to determine where it has discretion over the implementation, thus triggering a duty to bargain.
The memorandum goes on to point out that to the extent the ETS does not provide employers discretion over the decision to implement, an employer may nonetheless have a duty to negotiate over the effects of the decision. Again, while effects bargaining is nothing new, it is good to be reminded that implementation may require bargaining to a valid impasse or an agreement over the effects of the decision.
For the labor professional in a unionized workplace, the GC’s memorandum is a must read. In an already complicated regulatory environment, it adds yet another layer of complexity to consider in implementing the ETS.