The National Labor Relations Board’s Office of General Counsel issued a memorandum on November 10, 2021 with a broad outline of the GC's views on an employer’s duty to negotiate with unions over implementation of the Occupational Safety and Health Administration’s emergency temporary standard (ETS) on vaccinations, testing, and masking in the workplace for employers with 100 or more employees.

[See our prior alert, OSHA Issues Emergency Vaccine Mandate for Employers With 100+ Employees, for a comprehensive outline of the ETS.]

The GC's memo notes that “[a]lthough an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.”

The ETS, the memo notes, clearly impacts terms and conditions of employment, including the continued employment of workers who are affected by it.

As the ETS permits employers discretion over how they implement some of its requirements, employers have a duty to negotiate over the discretionary elements and the effects the non-discretionary elements of the ETS may have on unionized workers.

Unionized employers should seek legal counsel on how to implement the ETS as it applies to unionized employees.

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