Workplace Vaccine Mandates: Union and Non-Union Scenarios
Can an employer mandate that employees be vaccinated against COVID-19 as a condition of employment?
In a non-union context, the answer is “yes,” based on guidance from the U.S. Equal Employment Opportunity Commission, at least in the sense that it will not violate the Americans with Disability Act or the Genetic Information Nondiscrimination Act.
In the union context, the answer is less clear given the uniqueness of the COVID-19 pandemic and the paucity of case law under analogous circumstances.
As the starting point, under labor law, a unilateral change in a condition of employment is not permitted without first bargaining with the union unless contract language exists which permits the change.
Even if permitted, there may still be obligation to bargain over secondary impacts of the decision.
Labor Board Decisions
As COVID-19 vaccines become available to first responders and healthcare workers, questions are starting to arise as to whether employees can be mandated to get the vaccine.
A careful search of Connecticut State Board of Labor Relations and National Labor Relations Board decisions yields surprisingly little guidance.
One case uncovered involved a mandatory flu vaccination required by a hospital.
The NLRB ruled that was a mandatory subject of bargaining, and that a very narrow exception for decision that go to the core purposes of the enterprise, which the employer relied upon, did not apply. [Virginia Mason Hospital, 357 NLRB No. 53 (2011).]
That decision should be considered carefully by any private sector employers considering mandating vaccination.
For Connecticut public sector clients, the state board has historically looked to and followed NLRB decisions to guide it on novel or unsettled questions of law, so the above decision may be instructive.
For those Connecticut municipal employers who feel mandatory vaccination is imperative, two seldom used principles may be of assistance: (1) the emergency exception; and (2) public policy exception.
The conditions for each is something the state board rarely finds exists.
But then again, this pandemic is unique and may present just the right scenario for one or both of these exceptions for any employers looking to require vaccination for their workforce.
About the author: Floyd J. Dugas is a senior partner with Berchem Moses PC, and heads up the firm’s municipal labor and employment practice.
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