NLRB Issues Memo on COVID-19 Emergency Standard Bargaining Obligations

The National Labor Relations Board (NLRB) released a memorandum regarding COVID-19 emergency standard bargaining obligations. Chiefly, the memo outlines obligations while complying with the new Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS). Accordingly, Acting NLRB Associate General Counsel Joan Sullivan communicated the information to all NLRB field offices after its initial publication on November 10, 2021. Recently, in October, OSHA announced the release of a proposed heat hazard standard.

Background of the COVID-19 Emergency Temporary Standard

Previously, on September 9th, 2021, President Joseph R. Biden instructed OSHA to develop an ETS that would require employers with over 100 workers to mandate vaccinations or test employees for COVID-19 weekly. On November 4, the agency announced a new emergency temporary standard and vaccination policy. Notably, under the ETS, covered employers would develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopted a policy requiring employees to choose either to:

• receive a COVID-19 vaccination; or
• undergo regular COVID-19 testing and wear a face covering at work.

Additional Requirements of the ETS

Specifically, the ETS would not require employers to pay for testing or face coverings. However, to comply with other laws, regulations, and collective bargaining agreements, some employers would be required to pay for testing. In addition, employers would provide paid time for workers to get the COVID-19 vaccine. Additionally, the ETS would require employers to do the following:

• Determine the vaccination status of each employee by obtaining acceptable proof of vaccination;
• Maintain records and a roster of each employee’s vaccination status;
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and remove such employees from the workforce, regardless of vaccination status, until they meet required criteria;
• Ensure each worker who is not fully vaccinated tests for COVID-19 weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
• Ensure that, in most circumstances, each unvaccinated employee wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Businesses that did not comply would face significant OSHA fines. Finally, employers would be required to comply with:

• most requirements within 30 days of publication; and
• testing requirements within 60 days of publication.

Overview of Emergency Standard Bargaining Obligations

In brief, under the National Labor Relations Act (NLRA), employers generally have two different types of bargaining obligations: decisional bargaining and effects bargaining.  Generally, according to the National Law Review:

• “…decisional bargaining refers to an employer’s obligation to bargain with the union before implementing a change to the terms and conditions of employment.”
• “Effects bargaining refers to an employer’s obligation to bargain about the effects of the decision.”

Accordingly, in General Counsel Sullivan’s memo, she states that employers still have both types of bargaining obligations. Specifically, employers must bargain with unions when a necessary change occurs to any terms or conditions of employment. For instance, implementing the new ETS would require either vaccinations or regular testing as conditions of employment. In that case, the employer would bargain whether to implement a vaccine mandate or a vaccine and testing policy.

Recent ETS Stay of Enforcement

Two days after the NLRB’s memo release, on November 12, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS. Explicitly, the Fifth Circuit ruled that the ETS may exceed OSHA’s emergency rulemaking authority. The court also ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” However, even with the recent stay, employers should still pay attention to their emergency standard bargaining obligations. Once a single circuit court reviews the claims against the ETS, the court could rule that the ETS is constitutional as is. To effectively navigate the requirements of the COVID-19 Emergency Temporary Standard (ETS) and ensure workforce safety, employers should provide emergency preparedness training for employees. This training ensures that employees are aware of the necessary safety protocols, including vaccination requirements, testing procedures, and the proper use of face coverings, helping organizations maintain compliance with health regulations.