National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memorandum explaining her view of employers’ bargaining obligations in response to the US Department of Labor Occupational Safety and Health Administration’s Emergency Temporary Standard to Protect Workers from Coronavirus. According to Abruzzo, any issue involving employer discretion is subject to decision bargaining. The Emergency Temporary Standard may also trigger effects bargaining obligations for non-discretionary issues.
On November 10, Abruzzo issued Operations Management Memorandum 22-03, “Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers From Coronavirus” (OM Memo 22-03), which sets forth the General Counsel’s position on employer bargaining obligations stemming from the Emergency Temporary Standard (ETS). As Morgan Lewis’s COVID-19 Task Force has covered extensively, the Department of Labor’s Occupational Safety and Health Administration issued the ETS on November 5, 2021, establishing binding requirements for certain employers to protect employees from the spread of COVID-19 in the workplace. The ETS, which applies to employers with 100 or more employees, most notably requires employers to adopt a mandatory vaccination requirement, or subject employees to weekly testing, but covers a range of other issues as well, including establishing a written vaccine policy, verifying and maintaining records of the vaccination status of the workforce, and offering paid time off for vaccination. Employers must comply with all ETS provisions by December 6, 2021, except for the “vaccination or testing” deadline, which requires employees to have received their final dose of a vaccine series by January 4, 2022, or be subject to weekly testing.
OM Memo 22-03 briefly clarifies the General Counsel’s position on bargaining obligations related to the ETS in several ways. First, the General Counsel makes the obvious but legally significant point that the ETS affects employees’ terms and conditions of employment, triggering bargaining obligations. Second, OM Memo 22-03 highlights the distinction under the National Labor Relations Act between decision and effects bargaining obligations. Decision bargaining requires the employer to give the union notice and the opportunity to bargain over the underlying decision to take a given action. In contrast, in an effects bargaining situation, the employer can unilaterally decide to act, but must give the union notice and the opportunity to bargain over any impact (or effect) of implementing the decision on the employees’ terms and conditions of employment. Third, even though the ETS is federally mandated, OM Memo 22-03 asserts that any aspect of the ETS that grants employers discretion on implementation is subject to decision bargaining. Finally, Abruzzo states that employers still possess an effects bargaining obligation for any non-discretionary aspect of the ETS.
OM Memo 22-03 explicitly (and unfortunately) refuses to provide any guidance on which ETS requirements impose bargaining obligations on employers, stating instead that “the General Counsel does not offer advisory opinions and each case stands on its own facts.” Nevertheless, Morgan Lewis has identified the following issues that likely trigger bargaining obligations based on OM Memo 22-03:
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If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Steven R. Wall
Sharon Perley Masling
Jonathan L. Snare
 For a more detailed analysis of the ETS and related business considerations, attend the Morgan Lewis COVID-19 Task Force’s upcoming webinar on November 16.