By: Jim Cline
One of the emerging issues, at least in some departments is whether the employer can mandate that employees be vaccinated. If so, what are the legal rules and requirements around that issue?
For our premium website subscribers, we’ve recently presented a webcast that covers the highlights of this topic. We’ll elaborate on these points in this Newsletter article.
One threshold question is what is the duty to bargain collectively bargain around an order to do a mandatory vaccine? I recently reviewed a legal advisory from a statewide on this topic and started getting calls about whether employers could just impose these. The advisory dealt with the federal law requirements about vaccines but only incidentally address the state collective bargaining law issue, which got buried in the text. Let me be clear – the duty to bargain is the threshold issue and it’s unlikely that the employer can lawfully impose this mandate without first negotiating.
What would be the scope of whatever bargaining rights you do have? PERC has said in the collective bargaining statute says that there is a duty to bargain all wages, hours, and working conditions. The question posed here is how far does that mandate go to bargain working conditions?
On the issue of mandatory vaccine, we are dealing with some new territory here. PERC has yet to rule on the question of whether mandatory vaccinations are or are not a subject of bargaining. In cases where there is no clear precedent, we invariably turn to general PERC principles to try to address this question. We also know that PERC tends to look at the case law from the federal body, the National Labor Relations Board that applies to the private sector.
There are no PERC cases and the federal NLRB law is thin. There is, however, importantly, one case. And It happens to be local. There’s an NLRB decision out of Swedish hospital, and in that case, the NLRB did hold that there was a mandatory duty to bargain the imposition of a mandatory vaccine.
In our discussions with management attorneys in the region, we’re led to believe that most management attorneys understand that PERC, if called upon, likely would hold that there is a duty to bargain this. So, we’re not expecting that if push came to shove on this issue, that management in most cases would be resisting too hard the question of whether or not to bargain.
But what if this were presented to PERC? If there did come to be a PERC question on this issue, we know the PERC applies a “balancing test” approach to the “scope of bargaining issues.” In its balancing test, PERC weighs, on the one hand, how important is it for to have a free hand management in the operation of their enterprise, and, on the other hand then how directly the issue bears on those important working condition issues of employees.
And we think despite the management issues around the pandemic involving public safety issues and the questions of service delivery, we think on balance, it’s most probable that PERC would, if called upon, rule that there is in fact, a duty to bargain.
But what about the scope of that bargaining obligation? That’s really where more of the issue is likely to lie. Does the employer have to bargain the decision to impose a mandatory vaccine requirement before it’s imposed? Or is it what we would call after-the-fact “impact bargaining?” This distinction is very important because if it’s decisional bargaining, they have to negotiate before they announce or implement any mandate. And for bargaining groups that are subject to interest arbitration, the employer could even be required to go through mediation and arbitration before being able to implement the mandate.
By contrast, what’s an “impact bargaining” obligation? Impact bargaining allows an employer to implement it, and then merely address the impacts of that with the union after the implementation has already occurred. That distinction is important because all of your leverage in many of these situations arises from being able to require that the employer negotiates with you before it implements.
Again, the case law here is far underdeveloped. But we believe, if called upon, it is most likely that PERC would hold that decisional bargaining and not mere impact bargaining is what is called for.
Separate and apart from the collective bargaining issues that we’ve addressed, may the employer lawfully impose a vaccine requirement. The EEOC has been called upon to address this issue. It has provided some recent guidance on this subject. The EEOC has now said that, yes, under the applicable federal laws it is lawful for an employer to have a mandatory vaccination program. Note, again we must stress that these obligations are separate and apart from the duty to bargain and the EEOC guidelines do not diminish the state collective bargaining law requirements in any way.
One of the central points of the EEOC guidance is that, while a vaccine mandate would generally be lawful, for certain individuals, there may be an obligation to extend an accommodation. Who are those individuals who may be subject to accommodation?
First, we have the issue of people who have a medical disability/ And second, there’s a duty to apply a religious accommodation.
Disability protection under federal law covers individuals who have a major life condition that keeps them from performing, some of the duties of the job, whereas they require an accommodation. But It’s important to bear in mind that even though we’re now talking about EEOC guidelines, Washington state courts have a much broader definition of disability. And that definition likely would come into play in Washington State on the question of whether or how the employer must accommodate individuals who have some physical resistance to being vaccinated.
The religious accommodation stems from First Amendment and obligations that the EEOC is recognizing. And the EEOC indicates that, yes, if somebody has a bona fide good-faith religious belief, and that belief keeps them from being vaccinated because of their creed, that has to be accommodated.
It’s important to bear in mind here, we’re talking about a religious or a creed base accommodation, not a philosophical accommodation, not a political accommodation. The fact that somebody simply doesn’t like the whole concept of mandatory vaccinations or doesn’t believe that COVID is a real condition does not become a lawful basis that would require an employer to accommodate their ideas.
So, it has to be grounded in a religious situation. But that concept may be broader than some employers might assume. The EEOC recommends that
[B]ecause the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
What is the scope of that employer’s duty of accommodation? First, we should note that whether the issue is a medical-related disability or religious belief, the employer requirements for accommodating are going to be similar.
There are a couple of concepts the employer needs to consider in determining whether they’ve exhausted their obligation to accommodate. First, does it create a “direct threat” to co-workers, or perhaps to the public? Second, does the requested accommodation create an “undue hardship” on the employer?
Undue hardship questions are fact specific. Does it interfere with the fundamental operations in a way that it’s simply too much of a hardship and the accommodation no longer becomes reasonable? Is there undue expense?
What happens if the employer fulfills its duty to accommodate or, alternatively, doesn’t want to make an accommodation and you have a member who claims discrimination? If your member wants to challenge it, what is your union’s obligation in terms of representation?
This final question deals with the union’s internal obligation— the duty of fair representation, often referred simply as “DFR.” For all of the members in your bargaining unit, both paid members and non-paid employees in the bargaining unit who aren’t full members, you owe each and every one of those individuals a duty of fair representation in their contractual grievances. If somebody wants to pursue a civil lawsuit outside the four corners of the labor contract, that does not fall inside your duty of fair representation. But it’s critical to remember that if a grievance is being considered, your DFR extends to all those employed in the defined bargaining unit without regard to their union member or union dues status. And while we’ve otherwise indicated you may have some ability to impose service fees on nonmembers, you still owe a duty to represent and evaluate the grievance on its merits.
If your contract contains, as many CBAs do, a nondiscrimination clause and this issue is presented to the employer in the form of a discrimination grievance, then you have an obligation to fully and in good faith consider the merits of that grievance. The DFR doesn’t require that you arbitrate grievances that you have in good faith concluded lack merit. But in making that a good faith determination you likely will want your legal counsel to come in these legal issues as to the scope and nature of accommodation requirements. Again, if what the employee seeks is to present this issue to the EEOC or civil court, your DFR does not extend that far.
The main takeaways here are that 1) There’s a duty to bargain any mandate, 2) the issues around accommodation are manageable but moderately complex and sometimes fact-intensive, and 3) as always, you should handle any grievance presented to you with due care.
**Visit our Premium Website for more information on The General Nature of the Scope of Bargaining**
