The NLRB Weighs in on OSHA's Emergency Temporary Standard

By Timothy Bubenik - McMahon Berger P.C.

November 11, 2021

The National Labor Relations Board (NLRB) has weighed in on OSHA’s Emergency Temporary Standard (ETS) requiring employers with over 100 employees to mandate COVID-19 vaccinations or require weekly testing of employees.  Although many employers who are hesitant (for a variety of reasons) to enact vaccine mandates initially were pleased to have an alternative, the NLRB announced in General Counsel Memo 22-03 that because the ETS includes options for compliance, unionized employers subject to the ETS have a duty to bargain with employee representatives over policies they are required to adopt.

The employer’s duty to bargain applies not only to whether the employer will allow weekly testing instead of enacting a vaccine mandate, but also to other areas covered by the ETS. For example, although the ETS expressly states that employers may require employees to pay for weekly COVID-19 testing, according to the NLRB’s guidance, the designation of which party will be responsible for paying those costs may be a mandatory subject of collective bargaining.  Accordingly, unionized employers should seek counsel to ensure that their responses to the ETS fulfill both OSHA’s requirements and any collective bargaining obligations.