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. *