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NLRB Guidance on Unionized Employer Bargaining Obligations when implementing OSHA’s ETS to Protect Workers from Coronavirus

Published:  November 19, 2021

The National Labor Relations Board (NLRB) has released guidance on unionized employers’ bargaining obligations when implementing the Occupational Safety and Health Administration’s Emergency Temporary Standard to Protect Workers from Coronavirus (ETS). The ETS, if put into effect, would require employers with 100 or more employees to either institute a vaccine mandate or implement a testing program. The NLRB guidance advised that unionized employers must bargain over the latitude provided to employers by the ETS in making discretionary decisions for implementation of the mandate or testing program. Additionally, the guidance dictated that unionized employees should bargain over the potential effects of the ETS on the terms and conditions of employment and consequences for employees who fail to comply.

This guidance comes despite the November 16 announcement by the Occupational Safety and Health Administration that it was suspending implementation of the ETS. This announcement comes as a response to the Fifth Circuit Court of Appeals Order that ordered a pause on implementation of the ETS in light of pending litigation. In total, there were 34 petitions filed in 12 different circuit courts which sought review of the OSHA rule. In accordance with procedure, the cases were consolidated and a drawing selected the Sixth Circuit Court of Appeals to hear the challenges as a consolidated case. The Sixth Circuit will have the authority to modify or strike down the Fifth Circuit’s Order. It is expected that the United States Supreme Court will likely have the final say on this matter.

If you have questions about OSHA’s Emergency Temporary Standard, or any other general employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.