NLRB Says Employers Covered by OSHA ETS Have Options, Triggering Duty to Bargain

Final week, as broadly reported, the U.S. Division of Labor’s Occupational Security and Well being Administration (OSHA) issued an Emergency Non permanent Normal (ETS) to Defend Employees from the COVID-19 (see full particulars in our Perception). At the moment the topic of a lot pending litigation together with a Non permanent Restraining Order (TRO) and thus, in the intervening time, in limbo, the ETS is nonetheless a set of federal laws that, until overturned, applies to a big proportion of U.S. employers with 100 or extra employees and requires these employers to both: (a) mandate that each one staff be vaccinated towards COVID-19 or (b)  have a coverage permitting unvaccinated staff to  proceed working, as long as they check for the virus at the least weekly and put on masks in shared workspaces. With a comparatively short timeframe for compliance, the ETS has raised questions from these at each side of the labor relations desk, main the Normal Counsel of the Nationwide Labor Relations Board (NLRB) to concern an Operations-Administration Memo (OM 22-03 or “the Memo”) on November 10, 2021 explaining its place on the responsibility to discount over these issues.

The Memo, issued by the NLRB’s Appearing Affiliate Counsel Joan A. Sullivan, advises that the NLRB Normal Counsel takes the place that an employer’s resolution whether or not to mandate COVID-19 vaccination for all or to as an alternative allow the weekly testing/masking possibility instead is topic to an obligation to discount. The Board’s Normal Counsel causes that, though an employer is usually relieved of the responsibility to discount when a particular change in phrases and situations of employment is remitted by authorities motion, the ETS supplies employers with sure discretion. Citing prior NLRB choices, the Memo asserts that, in circumstances the place an employer is granted “significant flexibility and latitude” in its implementation of regulatory necessities, an employer could also be topic to an obligation to discount with its staff’ consultant.

Accordingly, the NLRB’s Normal Counsel takes the place that employers topic to the ETS could be obligated, if requested to achieve this, to discount with labor unions representing their staff over whether or not they may afford their staff the “vaccination or test/mask” possibility described within the ETS and its regulations.

The Memo additionally notes that the consequences of such choices and an employer’s compliance with the ETS stay topic to bargaining, and that implementation of such choices prior to both a collectively negotiated settlement or a legitimate deadlock might not be permissible, relying on the circumstances.

Needless to say the ETS doesn’t cowl each single unionized U.S. employer with 100 or extra employees. In truth, it expressly excludes all well being care employers coated by the Health Care ETS issued in June 2021 in addition to all employees coated by the Safer Federal Workforce Job Pressure Guidance for Federal Contractors and Subcontractors topic to President Biden’s Executive Order requiring vaccination.  Neither that Order nor the vaccine mandate for federal workers present for a testing-in-lieu-of-vaccination possibility. Thus, whereas they seem to lack the requisite “flexibility and latitude” that will, in accordance to the NLRB Normal Counsel’s place, set off an employer’s responsibility to discount over the choice to adjust to the federal directives, employers topic to the Well being Care ETS and the Steerage relevant to federal contractors will nonetheless have to discount over the consequences of compliance.

Erin Schaefer additionally contributed to this text. 

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