Many employers are weighing the pros and cons of mandating that their employees receive the COVID-19 vaccine as a condition of continued employment. In a non-union environment, mandating the vaccine generally is permissible, so long as the employer allows for exceptions for religious or health reasons. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws at Section K, Vaccinations. This point was made even clearer with the Equal Employment Opportunity Commission’s May 28, 2021 update to its COVID-19 Technical Assistance, available here. But, in the union-represented workforce, the analysis is more complex.
As employers with union-represented employees know, wages, hours, and other terms and conditions of employment are mandatory subjects of collective bargaining, meaning that changes can be made only if: (1) permitted by the applicable collective bargaining agreement (“CBA”); or (2) bargained with the union representing the employees. Although the National Labor Relations Board (“NLRB”) has not yet explicitly addressed whether a mandatory COVID-19 vaccination program is a compulsory subject of bargaining, NLRB precedent strongly suggests that it is. For example, in Virginia Mason Hospital, 356 NLRB 564 (2011), the NLRB held that an employer had a duty to bargain with its union-represented employees regarding a policy stating that employees must either get a flu shot or wear a mask while working.
Given that requiring a COVID-19 vaccine very likely is a mandatory subject of bargaining, the first thing an employer with union-represented employees should do is review the applicable CBA to determine if the agreement gives the employer the right to unilaterally implement a mandatory vaccination program. Some CBAs, particularly those applicable to health care employees, may contain specific language allowing the employer to implement vaccination requirements. More commonly, however, CBAs will be silent on the issue of mandatory vaccination. In such instances, the employer should look to the management rights clause and provisions of the CBA regarding health and safety policies to determine if that language is sufficiently broad to allow for the unilateral implementation of a mandatory vaccination program.
Historically, relying on a broad management rights clause to support unilateral changes has been very risky for employers. For many years, the NLRB applied a “clear and unmistakable” waiver standard when evaluating whether CBA language authorized unilateral changes by an employer. Under this standard, the employer was required to point to CBA language addressing the specific unilateral change and show that the union had clearly and unmistakably waived its right to bargain over the issue. Several federal Circuit Courts of Appeal criticized the narrow “clear and unmistakable” standard.
In 2019, the NLRB abandoned the clear and unmistakable standard favoring a “contract coverage” standard. MV Transportation, Inc., 368 NLRB No. 66 (September 10, 2019). The contract coverage standard, previously adopted by some of the federal Circuit Courts of Appeal, lowers the bar to establish that a CBA grants an employer the right to make a unilateral change to an otherwise mandatory subject of bargaining. Under this standard:
…the Board will give effect to the plain meaning of the relevant contractual language, applying ordinary principles of contract interpretation; and the Board will find that the agreement covers the challenged unilateral act if the act falls within the compass or scope of contract language that grants the employer the right to act unilaterally.
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Accordingly, we will not require that the agreement specifically mention, refer to or address the employer decision at issue. Where contract language covers the act in question, the agreement will have authorized the employer to make the disputed change unilaterally….
MV Transportation, Inc. 368 NLRB at p. 11 (citations omitted).
Takeaway: Under MV Transportation, a CBA’s strong management rights clause, or other language related to health and safety practices and policies, may support an employer’s unilateral implementation of a mandatory COVID-19 vaccination program among its union-represented staff. However, it is strongly recommended that employers discuss any such proposed changes with labor counsel prior to implementation to assess the strength of the contract language at issue, and to account for any changes in NLRB precedent that might impact the analysis.