Parker Poe Adams & Bernstein LLP

Assuming it takes effect at some point, the Occupational Safety and Health Administration’s new COVID-19 emergency temporary standard (ETS) includes new legal mandates, as well as several options for affected employers. Chief among these decisions is whether the employer will mandate employee vaccinations or instead implement a testing and masking option for unvaccinated workers.

For companies with unionized workforces, the ETS raises questions over their obligation to enter into bargaining with the unions over these new obligations. This bargaining falls into several categories. If the employer is making changes to terms and conditions of employment not included in the collective bargaining agreement, it must enter into mandatory bargaining with the union before it can implement such changes. On the other hand, if the changes are imposed by new legal requirements, the employer may follow the law without the union’s agreement but must enter into what’s called “effects bargaining” to determine whether negative impacts caused by the new requirements can be mitigated.

On its face, the ETS imposes new legal requirements that would appear to be the subject of effects rather than mandatory bargaining. However, as set forth above, OSHA gave employers the discretion to make several choices as to how they will comply with these new requirements. Last week, the Office of the General Counsel to the National Labor Relations Board issued a memorandum to its regional offices explaining its position with regard to bargaining obligations under the OSHA ETS.

The memo notes that when employers have discretion to make changes in terms and conditions of employment in response to a change in the law, this becomes a subject of mandatory bargaining. In other words, the employer must bargain with its union with respect to the vaccinate-or-test policy choice. Presumably, the same legal reasoning would apply to any decision to shift the cost of COVID-19 tests to members of the bargaining unit.

Other provisions of the ETS, such as the masking mandate for unvaccinated workers, contain no such discretionary elements and, therefore, would only be subject to effects bargaining. Presumably, if the employer chooses to allow the testing alternative and agrees to pay for such tests, this would not result in pushback from most unions. Regardless, as a result of this guidance and on top of everything else employers must prepare for with the ETS, those with unionized workforces can add these bargaining obligations to their compliance lists.

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