Assuming it takes effect at some point, the Occupational Safety and Health Administration’s new COVID-19 emergency temporary standard (ETS) includes new legal mandates, as well as several options for affected employers. Chief among these decisions is whether the employer will mandate employee vaccinations or instead implement a testing and masking option for unvaccinated workers.

For companies with unionized workforces, the ETS raises questions over their obligation to enter into bargaining with the unions over these new obligations. This bargaining falls into several categories. If the employer is making changes to terms and conditions of employment not included in the collective bargaining agreement, it must enter into mandatory bargaining with the union before it can implement such changes. On the other hand, if the changes are imposed by new legal requirements, the employer may follow the law without the union’s agreement but must enter into what’s called “effects bargaining” to determine whether negative impacts caused by the new requirements can be mitigated.

On its face, the ETS imposes new legal requirements that would appear to be the subject of effects rather than mandatory bargaining. However, as set forth above, OSHA gave employers the discretion to make several choices as to how they will comply with these new requirements. Last week, the Office of the General Counsel to the National Labor Relations Board issued a memorandum to its regional offices explaining its position with regard to bargaining obligations under the OSHA ETS.

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