Mandating COVID-19 Vaccination Among A Union Workforce

• Published date: 12 June 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Contract of Employment, Health & Safety, Employee Rights/ Labour Relations, Employment and Workforce Wellbeing
• Law Firm: Dickinson Wright PLLC
• Author: Mr William Thacker

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...