Must Employers Bargain with Unions over Mandatory Vaccines?

Allen Smith, J.D. By Allen Smith, J.D. August 12, 2021
LIKE SAVE
Someone administering a COVID-19 vaccine

​A unionized employer can't usually impose a mandatory vaccine policy unilaterally. Instead, an employer must bargain with the union to agreement or impasse before adopting such a policy, although a union may waive its right to bargain.

At least one union has sued over a mandatory vaccination policy, maintaining that an employer adopted the policy without bargaining long enough.

"Most mandatory vaccination policies ultimately provide for discipline or discharge, which is quintessentially a mandatory subject of bargaining," said Anthony George, an attorney with Bryan Cave Leighton Paisner in Denver.

A policy might require COVID-19 vaccination as a condition of entering the workplace. Employees who refuse to be vaccinated and can't work remotely would eventually be subject to discipline or discharge for failing to report to work, unless they need a disability-related or religious accommodation.

Waiver

"In some cases, a union will have waived its right to bargain over such a policy by agreeing in the collective bargaining agreement that the employer may unilaterally impose reasonable workplace safety and health rules, often with prior notice to the union and an opportunity to comment," George said. "Such a provision is not uncommon in industrial settings."

A mandatory vaccination policy likely would constitute a safety and health policy, he said. "So in those situations, the employer would likely be able to implement the policy unilaterally," George stated.

Proving that contract language constitutes a waiver of the right to bargain can be difficult, however, particularly when brought before the National Labor Relations Board (NLRB), which soon will be controlled by Democratic members, said Ashley Cano, an attorney with Seyfarth in Chicago.

Established Practice

"An established past practice can also create a waiver of the right to bargain over a particular topic," George said.

For example, he noted, if the parties have an established practice of letting the employer impose new work rules without bargaining, that practice might allow the employer to unilaterally implement its mandatory vaccination policy.

"To create a waiver of the right to bargain, the past practice must be both relevant and well-established," he said. One instance of the employer unilaterally requiring employees to wear a particular kind of reflective vest is unlikely to waive the union's right to bargain over a COVID-19 policy. "But a dozen instances of the employer unilaterally imposing work rules on a wide range of safety and health issues might be sufficient," George said.

Nonetheless, even if a contract or a past practice might create a waiver as to some kinds of safety and health measures, a union could argue that the pandemic is different, he noted.

Cano said it's unlikely that many employers have established past practices that would support unilaterally implementing mandatory vaccine policies.

"A past practice regarding flu shots may not be considered an established past practice with respect to COVID-19 vaccinations, given the new and unique issues surrounding the current pandemic and the vaccines," said Dan Altchek, an attorney with Saul Ewing Arnstein & Lehr in Baltimore and New York City.

Recent Lawsuit

The International Brotherhood of Teamsters, Local 743—representing workers employed by the Central States, Southeast and Southwest Areas Health and Welfare Pension Funds—has sued in Illinois federal district court alleging that the funds violated the collective bargaining agreement (CBA) by implementing a mandatory vaccination policy.

The Teamsters allege that the funds violated the CBA by failing to bargain for a reasonable period with the Teamsters about the policy and by refusing to arbitrate whether the unilateral implementation violated the CBA, said Genaira Tyce, an attorney with Akerman in New York City. The Teamsters asked the court to grant relief compelling the funds to arbitrate the issues and preventing the funds from implementing any part of its mandatory vaccination policy prior to an arbitrator's ruling.

"A legal challenge like the Teamsters' lawsuit can derail employers' timelines for implementing their mandatory vaccine policies and drastically delay employee return-to-work initiatives," Tyce said.

The Teamsters' claim is a breach-of-contract action and so the outcome will depend on the terms of the CBA, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. The lawsuit lays the framework for how a union might challenge similar policies in court instead of going to the NLRB, he noted.

"Expect more lawsuits like this," George said. In addition, "expect to see unions filing unfair labor practice charges alleging that the employer has unilaterally implemented the policy without first bargaining in good faith."

While some union leaders have voiced support for mandatory vaccine policies, others have expressed concerns about them. Some union leaders have opposed the mandate that federal employees be vaccinated or subject to masking and weekly testing, while others have said that this "soft mandate" must first be negotiated, according to The Hill.

"Given the controversial nature of mandatory vaccination, employers with a bargaining obligation that want to implement a mandatory vaccine policy should consider putting the bargaining representative on notice of its intent to implement the policy as soon as possible," Tyce said. Such notice creates "sufficient time to bargain over the issue and ensures bargaining remains in line with the employer's operational needs and implementation timeline."

Moreover, "this will hopefully help preserve relationships with your union and your team members," said Phillip Wilson, president and general counsel with Labor Relations Institute in Broken Arrow, Okla.

Negotiations if a Governmental Entity Mandates Vaccines

Even if cities or other governmental entities require vaccines, employers must bargain about the implementation, Cano said.

Some of the effects of a government mandatory vaccination order that should be negotiated, according to a Littler report, might include:

  • Classes of employees subject to vaccination, unless specified by the order.
  • Timing of the vaccination.
  • Compensation for time spent in the vaccination procedure.
  • Consequences of an employee's refusal to submit to vaccination.

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

LIKE SAVE

SHRM HR JOBS

Hire the best HR talent or advance your own career.

Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

LEARN MORE

SPONSOR OFFERS

HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.