On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Our summary of the ETS is available here.
On November 6, the Fifth Circuit Court of Appeals stayed the ETS pending further action. Other challenges to the law have been filed in other federal appellate courts and other suits — those saying that the ETS does not do enough — are expected. The outcome of the ETS will be determined by a federal appellate court once the cases are consolidated and eventually the Supreme Court. The legal proceedings mean that the future of the ETS is uncertain. This uncertainty has left employers in a bit of limbo, particularly given the ETS contains deadlines that are just around the corner.
Putting aside the stay, the ETS sets a December 6, 2021 deadline for employers to establish an ETS compliant policy, determine employee vaccination status (with proof, records, and a roster), provide paid time for vaccination and paid leave for recovery , and implement safety protocols regarding unvaccinated employees and positive cases in the workplace. The ETS sets a January 4, 2022 deadline for employers to ensure that employees who are not fully vaccinated are tested in accordance with the standard’s requirements.
While the legal machinations play out, covered employers should prepare to comply with the law in the event the stay is lifted and the ETS takes effect. It is better to prepared than to discover with short notice that you have to develop a policy, obtain vaccination information, and provide time for vaccination, among other requirements, that you have only a few days (or less) to get things in place.
Against this backdrop, the National Labor Relations Board’s Acting Associate General Counsel has opined on the bargaining obligations of employers with unionized workforces. In Memorandum OM 22-03, the NLRB’s Office of the General Counsel confirms what employers already know: some degree of bargaining is generally required regarding the OSHA ETS on unionized workforces. This bargaining obligation includes whether there will be a mandatory vaccination policy or an employee choice option (the option permitting employees to choose to be vaccinated or comply with testing and face covering requirements) and bargaining regarding the effects of the ETS-compliant policy (testing costs, time off, discipline, etc.). The memorandum states:
- “[C]overed employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.”
- “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.”
- “The ETS clearly affects terms and conditions of employment—including the potential to affect the continued employment of employees who become subject to it—and gives covered employers discretion in implementing certain of its requirements.”
- “To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.”
The scope of an employer’s bargaining obligation is also impacted by the terms of the applicable collective bargaining agreement. We’ll continue to update this site as the status of the ETS develops. In the interim, OSHA has prepared FAQs and policy templates, which you can find at the agency’s COVID-19 Vaccination and Testing ETS website.