Last week, as widely reported, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to Protect Workers from the COVID-19 (see full details in our Insight). Currently the subject of much pending litigation including a Temporary Restraining Order (TRO) and thus, for the time being, in limbo, the ETS is nonetheless a set of federal regulations that, unless overturned, applies to a large proportion of U.S. employers with 100 or more workers and requires those employers to either: (a) mandate that all employees be vaccinated against COVID-19 or (b)  have a policy allowing unvaccinated employees to  continue working, so long as they test for the virus at least weekly and wear masks in shared workspaces. With a relatively short timeframe for compliance, the ETS has raised questions from those at both sides of the labor relations table, leading the General Counsel of the National Labor Relations Board (NLRB) to issue an Operations-Management Memo (OM 22-03 or “the Memo”) on November 10, 2021 explaining its position on the duty to bargain over these matters.

The Memo, issued by the NLRB’s Acting Associate Counsel Joan A. Sullivan, advises that the NLRB General Counsel takes the position that an employer’s decision whether to mandate COVID-19 vaccination for all or to instead permit the weekly testing/masking option as an alternative is subject to a duty to bargain. The Board’s General Counsel reasons that, although an employer is generally relieved of the duty to bargain when a specific change in terms and conditions of employment is mandated by government action, the ETS provides employers with certain discretion. Citing prior NLRB decisions, the Memo asserts that, in circumstances where an employer is granted “significant flexibility and latitude” in its implementation of regulatory requirements, an employer may be subject to an obligation to bargain with its employees’ representative.

Accordingly, the NLRB’s General Counsel takes the position that employers subject to the ETS would be obligated, if requested to do so, to bargain with labor unions representing their employees over whether they will afford their employees the “vaccination or test/mask” option described in the ETS and its regulations.

The Memo also notes that the effects of such decisions and an employer’s compliance with the ETS remain subject to bargaining, and that implementation of such decisions prior to either a collectively negotiated agreement or a valid impasse may not be permissible, depending on the circumstances.

Keep in mind that the ETS does not cover every single unionized U.S. employer with 100 or more workers. In fact, it expressly excludes all health care employers covered by the Health Care ETS issued in June 2021 as well as all workers covered by the Safer Federal Workforce Task Force Guidance for Federal Contractors and Subcontractors subject to President Biden’s Executive Order requiring vaccination.  Neither that Order nor the vaccine mandate for federal workers provide for a testing-in-lieu-of-vaccination option. Thus, while they appear to lack the requisite “flexibility and latitude” that would, according to the NLRB General Counsel’s position, trigger an employer’s duty to bargain over the decision to comply with the federal directives, employers subject to the Health Care ETS and the Guidance applicable to federal contractors will still have to bargain over the effects of compliance.

Erin Schaefer also contributed to this article.