On November 10, 2021, General Counsel Jennifer Abruzzo issued a memorandum outlining bargaining obligations under OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).  Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus, GC 22-03 (November 10, 2021).

The ETS, which took effect on November 5, 2021, requires employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.”  The ETS, however, provides an exception, permitting employers to adopt a policy either requiring employees to receive the vaccination or submit to regular COVID-19 testing if they opt to remain unvaccinated.  Immediately following the ETS’s implementation, numerous lawsuits challenging the rule were filed resulting in the Fifth Circuit Court of Appeals temporarily staying the ETS on November 6th.

In the memorandum, GC Abruzzo takes the position that “covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment.”  The memorandum argues that the ETS “clearly affects terms and conditions of employment” because of its potential to affect the continued employment of employees who are affected by the rule and thus bargaining is required.  Although Abruzzo acknowledged that there is no duty to bargain where a change in the terms and conditions of employment is statutorily mandated, the memorandum emphasizes the discretion afforded to employers in complying with the ETS and the duty to bargain that arises as a result.  Namely, employers have the option of mandating vaccination for all employees or requiring employees to either become vaccinated or undergo regular testing if they refuse the vaccine.  As the memorandum notes, an employer “may not act unilaterally so long as it has some discretion in implementing” statutory requirements.

Even where the ETS does not provide employers any discretion, Abruzzo goes further, noting that large employers are required to bargain over the effects of their decision to implement changes under the ETS.  The memorandum cites National Labor Relation Board (“NLRB”) precedent for the proposition that even where an employer can unilaterally change policies under federal law, failure to bargain over the effects of the change can constitute a violation of Section 8(a)(5) of the National Labor Relations Act.

Takeaways

Although the memorandum is relatively short, it plainly makes the NLRB’s position known.  Failure to bargain and reach agreement or impasse over: (i) the effects of ETS-compliant policies; or (ii) the employer’s decision about how to comply with the ETS where it is afforded discretion may constitute an unfair labor practice.  While each individual case may differ, employers aiming to comply with the ETS should immediately take steps to bargain with their unionized workforce prior to implementing any policy changes required by the regulation.  As always, we will continue to keep you apprised of the latest developments at the NLRB.

Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Tony S. Martinez Tony S. Martinez

Tony Seda Martinez is an associate in the Labor & Employment Law Department and assists clients in a wide range of labor and employment law matters.

Prior to joining Proskauer, Tony attended Rutgers School of Law. While in law school, he interned for…

Tony Seda Martinez is an associate in the Labor & Employment Law Department and assists clients in a wide range of labor and employment law matters.

Prior to joining Proskauer, Tony attended Rutgers School of Law. While in law school, he interned for the United States Attorney’s Office, the Honorable Judge Esther Salas of the United States District Court for the District of New Jersey, and the Honorable Chief Justice Stuart Rabner of the Supreme Court of New Jersey. In addition, Tony served as a senior notes and comments editor of the Rutgers Law Review and a clinical law student at the Rutgers Community & Transactional Lawyering Clinic. Tony also served as a research assistant to Professor Bernard Bell and as a teaching assistant to Professor Taja-Nia Henderson.