OSHA’s ETS and the NLRB’s Recent Guidance

Stokes Wagner
Contact

Based on recent guidance from the Office of the General Counsel of the National Labor Relations, covered employers with unionized workers must engage their employees’ unions when developing their vaccination and/or testing policies to comply with OSHA’s new ETS rule (“ETS”). The Board has emphasized employer’s duty to bargain concerning changes in terms and conditions of employment where employers are allowed discretion in implementation. Since ETS gives covered employers discretion with regards to implementing certain of its requirements, employer’s must bargain with their employees’ unions.

As to those provisions of the rule that are mandatory and therefore do not allow employers discretion in implementation, employers still must bargain with their employees’ unions over the effects of the implementation of those mandatory elements of the rule. Whether an employer may implement a mandatory rule prior to a valid impasse or agreement when bargaining over effects will depend on the facts of the given situation. Although a covered employer can unilaterally implement ETS mandates without bargaining, it will have to bargain over the effects of the policies, such as the consequences for employees who fail to comply.

*It is prudent for employers with union-represented employees to remain vigilant of their bargaining obligations under the ETS, as their compliance efforts may potentially expose them to unfair labor practice charges by a union for failing to bargain in good faith. *

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.

© Stokes Wagner | Attorney Advertising

Written by:

Stokes Wagner
Contact
more
less

Stokes Wagner 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.