On Nov. 10, the general counsel’s office of the National Labor Relations Board issued a memo expressing the position that employers have both decisional and effects bargaining obligations in relation to implementation of OSHA's Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”). Although the ETS is currently on hold, the memo is valuable for what it reveals about the office’s views on employers’ duty to bargain over government mandates generally.
The memo states that, while an employer is relieved of the duty to bargain over specific changes in terms and conditions of employment mandated by statute, “the employer may not act unilaterally so long as it has some discretion in implementing those requirements.” The memo notes that the ETS “clearly affects terms and conditions of employment—including the potential to affect the continued employment of employees who become subject to it—and gives covered employers discretion in implementing certain of its requirements.” Key among the discretion given to employers under the ETS is the choice of requiring employees to receive a COVID-19 vaccination or to undergo regular testing and wear face coverings at work. According the general counsel’s office, ETS-covered employers must bargain over such decisions.
In addition to decisional bargaining, employers have a duty to bargain over the effects of complying with the ETS. While not specifically addressed in the memo, the effects might include such things as how much time employees have to comply with the requirements, consequences for failing to comply, procedures for requesting exemption, and who pays for testing.
Union contractors and collective bargaining chapters should consider promptly reaching out to the trades to discuss vaccination and testing mandates, if they haven’t already. If the ETS stay is lifted, employers might have a short time to implement some of its requirements. Even if the ETS is permanently enjoined, many contractors are facing vaccination and testing mandates imposed by other government authorities and by private owners. Contractors and chapters that have settled on a memorandum of understanding or collective bargaining agreement language addressing these matters are asked to please share the language with AGC of America by emailing Denise Gold at denise.gold@agc.org, with consent to share with others.