Mandatory Vaccinations – A Management Right or a Union Negotiation
Given President Biden’s executive order requiring companies with 100 or more employees to mandate the COVID-19 vaccination, unionized companies must consider whether the vaccine mandate is a mandatory subject of bargaining with its labor union or a management right to implement the rule.
When laws change, all companies, including unionized companies, are required to follow the law.[1] Although companies may have management rights to make certain decisions involving the workplace, they are still required to bargain over the effects of those decisions.[2]
Unionized companies mandating COVID-19 vaccinations may find themselves in this situation and, if they do not negotiate with the union over the effects of the changed rules, could face legal action. Southwest airlines, in an attempt to comply with the President’s executive order, set a December 8, 2021 deadline for its employees to be vaccinated.[3] Southwest’s unionized pilots filed a temporary restraining lawsuit to block the mandatory vaccination rule.[4]
This week a U.S District Judge in Texas held that United Airline’s policy of putting employees who request an exemption from the vaccination on temporary leave was not a reasonable accommodation, but rather a punitive action that could lead to termination and granted the employees a temporary restraining order preventing United Airlines from removing any worker requesting exemptions from the company’s COVID-10 vaccine mandate.[5]
Tyson Foods Inc. also required its employees to be vaccinated, which began an extensive negotiation with the unions representing Tyson Foods’ employees.[6] Tyson Foods and its unions representing 80% of its employees -- the United Food and Commercial Workers (UFCW) International Union and the Retail and Wholesale and Department Store Union – reached agreement on the COVID-19 vaccine mandate and agreed to new paid sick leave policy for its plant workers.[7]
Takeaway
Unionized companies, despite being required to follow the law and mandate COVID-19 vaccinations, should consider whether they are required to engage in effects bargaining with their respective unions over the impact on employees from implementing the mandate. Such negotiations may stave off the company defending a lawsuit or unfair labor practice charge.
[1] NationalNation Treasury Employees Union v. Federal Labor Relations Authority, No. 20-1148 (D.C. Cir. 2021).
[2] First Nat’l Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).
[3] David Shepardson, http://www.reuters.com/business/aerospace-defense/southwest-airlines-comply-with-biden-vaccine-mandate-by-dec-8-2021-10-04/ (last visited Oct. 10, 2021).
[4] The injunctive relief sought by Plaintiff will retrain the Defendant from interfering with the federal Railway Labor-Act-protected rights of its pilot employees represented by SWAP. See Southwest Airlines Pilots Association v. Southwest Airlines Co., No. 3:21-cv-2065-M (U.S. N.D. Tex 2021)
[5] Peter Jeffrey, http://www.bloomberg.com/news/articles/2021-10-13/united-airlines-vaccine-mandate-program-is-limited-by-court (last visited Oct. 10, 2021).
[6] Tom Polansek and Aishwarya Venugopal, http:// reuters.com/business/meatpacker-tyson-foods-mandates-vaccines-workers-2021-08-03/ (last visited Oct. 10, 2021).
[7] Jacob Bunge, http:// wsj.com/articles/tyson-foods-strikes-deal-with-unions-on-covid-19-vaccines-sick-pay-11630674000 (last visited Oct. 10, 2021).