Update on OSHA COVID Vaccination/Testing Mandate and Employers’ Duty to Bargain ETS Requirements

Nov 16, 2021

On November 12, the Fifth Circuit Court of Appeals upheld its decision to impose a nationwide stay of the Emergency Temporary Standards (ETS) issued by the Occupational Safety and Health Administration (OSHA). As we previously covered, the ETS requires employers with at least 100 workers to implement a written policy that mandates employee vaccination or requires unvaccinated employees to submit to regular COVID-19 testing and comply with masking requirements.

In its latest ruling, the Fifth Circuit described the ETS’s requirements as “overbroad”, further adding that it “grossly exceeds OSHA’s statutory authority”. However, the court’s order is only the opening salvo in a legal fight that is expected to eventually land before the U.S. Supreme Court. Later today, the Judicial Panel on Multidistrict Litigation will hold a lottery to assign the consolidated cases challenging the ETS case to a Circuit Court of Appeals to make a determination as to whether the ETS is enforceable. It’s possible that the new court will agree with the Fifth Circuit’s decision and affirm the stay. But if the new court lifts the stay, then covered employers must quickly prepare to comply with the standard’s requirements, most of which take effect on December 6, 2021.

November 12 also saw the NLRB General Counsel’s Office issue a memorandum discussing covered employers’ obligation to bargain over implementation of the ETS. In the past, the NLRB has established that employers have the duty to bargain about the decisions prompted by a new law when two requirements are satisfied:

1) the law clearly affects the terms of conditions of employment of employees subject to it;
2) and the employer has some discretion in implementing certain requirements under the new law.

However, employers are not required to bargain over decisions where a specific change in terms and conditions of employment is statutorily mandated. Here, the NLRB General Counsel clarified that although the ETS mandates employers to follow its requirements, it still gives employers discretion in how to implement them. Therefore, unionized employers should prepare to negotiate with unions on how it will implement aspects of the ETS where it has discretion, such as whether to mandate employee vaccination or permit unvaccinated employees to undergo regular testing. Even where employers have no discretion – such as the requirement to provide paid leave in connection with receiving the vaccine – employers must still bargain over the effects of the requirements.

For a unionized employer, the prudent course is to begin bargaining now, contingent on the ETS being upheld by the courts.  Otherwise, such an employer might not be able to fulfill both its bargaining duty and timely implementation of the ETS’ requirements.  Of course, if a Circuit Court affirms the stay of the ETS, then the duty to bargain will likewise be paused. More information on the memorandum can be found here.

KWW will have more information concerning the ETS in the coming days. Please contact any KWW professional for any assistance with complying with the ETS.  Your workforce is our priority.

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