NLRB General Counsel Explains Bargaining Obligations for Unionized Employers regarding the New Emergency Temporary Standard to Protect Workers from Coronavirus (ETS)

Morgan, Brown & Joy, LLP
Contact

Morgan, Brown & Joy, LLP

On November 10, 2021, the National Labor Relations Board’s General Counsel’s’ Office issued Memorandum OM-22-03 outlining an employer’s bargaining obligations with their unions relating to the recent Emergency Temporary Standard requiring employers with 100 or more employees to adopt a policy requiring employees to choose either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. (See prior MBJ Client Alert of November 4, 2021)

The Memorandum indicates that the General Counsel’s position is that covered employers “would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment” in areas of the ETS that allow employers flexibility on implementation. Citing prior case law, the General Counsel notes that, while an employer is relieved of the duty to bargain where a specific change in working conditions is mandated by statute, it may not act unilaterally where it has some discretion in implementing those requirements. The ETS does provide employers some discretion in implementing its requirements and, as such, an employer must negotiate over such implementation questions with their unions.

In addition, regarding other aspects of the ETS where no discretion is afforded, the employer may still have a duty to bargain over the effects of the decision.

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.

© Morgan, Brown & Joy, LLP | Attorney Advertising

Written by:

Morgan, Brown & Joy, LLP
Contact
more
less

Morgan, Brown & Joy, LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.