Funny You Should Ask: Is A Vaccine Mandate Subject Of Bargaining?

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1.  I have a unionized workforce. Do I need to bargain before mandating that my employees are Covid vaccinated before reporting to work?

With the CDC largely ending mask requirements for those who are Covid vaccinated, many employers will look anew at whether they will require vaccinations for their employees to participate in the workplace. While this whole topic raises a myriad of questions related to vaccine certificates, maintenance of medical records, and exceptions that might apply to employees because of religious or health accommodations, an entirely separate question comes up as to whether employers may mandate their union workforce to be vaccinated in order to work.

Bargaining Rights

The National Labor Relations Act obligates employers to bargain with existing unions over wages, hours and terms and conditions of employment, 29 USC Section 158 (a)(5). When employers establish rules, they usually come with the opportunity to discipline or even terminate employees who fail to follow those rules. There can be real impact if a union-represented employee challenges a vaccine requirement and insists on coming to work, but for his or her own reason, chooses not to be vaccinated. Therefore, a vaccine mandate would almost certainly be a mandatory subject of bargaining for unionized workforce. Though without clear precedent, it seems nearly certain that vaccine requirements would likewise be a mandatory subject of collective bargaining. For instance, in the last few decades, drug and alcohol testing requirements are recognized as a mandatory subject of bargaining.

Employer Steps

Of course, your collective bargaining agreement might already have provisions that allow this decision. Employers must review any managements rights clause or other provisions reserving to management the right to promulgate health and safety rules.  Such provisions might arguably allow this type of unilateral decision.

If the Collective Bargaining Agreement does not authorize unilateral action, and does not prevent changes in terms or conditions of employment through a zipper clause or other mechanism, the employer will need to give notice to the union of the impending change, and offer an opportunity to bargain over the decision to mandate vaccination before participating in the workplace. Employers should not enforce the work rule unless the union waives it right to bargain, bargaining to an agreement, or reaching impasse. Upon reaching impasse an employer may consider unilaterally implementing the rule but should do so with caution and only after review from qualified labor counsel.

Effects or Impact Bargaining

The NLRA mandates not only so called “decision” bargaining regarding changes in wages, hours and terms and conditions of employment, but may also mandate bargaining over the effects of a decision. That is, the union might legitimately demand bargaining over how the vaccine mandate would affect their represented employees and bargain about how certain impacts may be minimized or avoided. In other words, even while an employer may have the right under the collective bargaining agreement to unilaterally create a mandatory vaccination rule, collective impact or effects bargaining may still be a required step before implementation.

Union Readiness

While unions clamored for access to vaccines for those union members in essential industries, they are also preparing for bargaining on this issue. For instance, the American Federation of Government Employees offered bargaining guidance regarding the required vaccinations and offer step by step union proposals regarding notice, scope of information provided, costs, paid absence to receive vaccine and the like. Kim Cordova, Vice President of the United Food and Commercial Workers International Union bluntly said that companies must negotiate with unions before making vaccines mandatory. “If employer wants to make that mandatory…they would have to negotiate that with us. They could not change a condition of employment. They could not make that mandatory in the middle of a contract unless the state or government require it.”

Prepare for Mandating Vaccinations

According to a Kaiser Family Foundation poll in March, vaccine hesitancy is shrinking while the number of those vaccinated is growing. Many of those who were in the “wait and see” group have been persuaded to get vaccinated, but there continues to be a sizable portion of the population who report that they will definitely not get the vaccine. However, education and general community acceptance of vaccinations may erode even that number. Ease of accessibility is also affecting the vaccination rate. Before making any proposals or mandates in the workplace, unionized or otherwise, it is recommended that employers continue an active dialogue with employees on the issue of health, safety and vaccinations, and offer help in finding easy vaccination opportunities to its workforce.  Other employers are offering incentives to their employees in the form of payments or paid time off.  However, Husch Blackwell has advised some caution in providing payments for vaccination. Encouraging your employees and helping them form a positive view of the ease of vaccinations and vaccine effectiveness will help pave the way for steps toward mandating Covid vaccines taken further down the line.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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