On January 13, 2022, the Supreme Court of the United States held that OSHA’s “vaccine-or-test” rule for large employers (100 or more employees) was beyond OSHA’s statutory authority. OSHA therefore cannot compel all large employers – public and private – to require employees to be vaccinated against COVID-19 or subject employees to weekly testing. The Court’s holding does not mean that employers cannot mandate the COVID-19 vaccine. Rather, the ruling simply means that OSHA’s rule will not go into effect.
Courts are consistently rejecting claims that vaccine mandates violate constitutional rights. Likewise, parties who request injunctive relief are unlikely to be successful. To obtain injunctive relief, an employee must demonstrate irreparable harm. Job loss, however, is not considered irreparable harm. If the employer is eventually found to have violated the law in implementing the vaccine mandate, the policy can be rescinded. Further, the employee can be made whole through an award of back pay, reinstatement, removal of discipline from a personnel file, or other similar measures.
Opportunities to Bargain over the “Impact” or “Effects” of Vaccine Mandates
For unionized employees, the collective bargaining agreement may offer some protection against mandatory vaccine policies. The language of the collective bargaining agreement is important. In some cases, the union may have waived its rights to bargain over the implementation of a vaccine mandate. For example, a broad management-rights clause may specifically authorize – or be interpreted to authorize – the employer to implement reasonable workplace safety rules without bargaining.
Nonetheless, the employer may still be required to provide the union with an opportunity to bargain over the effects of a vaccine mandate even if the union waived bargaining over the implementation of such a mandate. This is sometimes referred to as “impact bargaining” or “effects bargaining.” This type of bargaining means that the employer will be required to meet and confer with the union about matters such as time off to get the vaccine, alternatives to the vaccine, consequences for employees who refuse the vaccine, and reasonable timelines for employees to receive the first dose. As demonstrated in recent arbitration decisions, this is the more likely outcome of a union challenge to an employer’s vaccine mandate.
Recent Arbitration Decisions on Vaccine Mandates
In City of Pittsburgh and Pittsburgh Fire Fighters Assoc., Arbitrator Gerald Kobell found that the City of Pittsburgh’s decision to mandate the vaccine is consistent with law and its municipal authority to prevent and control the spread of disease. However, Arbitrator Kobell determined that the City violated the collective bargaining agreement by refusing to bargain with the union concerning certain “effects” of the mandate. Specifically, the City failed to bargain over the rules and protocols ancillary to the vaccine mandate as part of the terms and conditions of the firefighters’ employment. Thus, Arbitrator Kobell ordered the City to engage in “effects bargaining” about the mandate.
Likewise, in AFSCME District Council 33 and City of Philadelphia, Arbitrator Alan Symonette upheld the City of Philadelphia’s vaccine mandate. In order to continue working in their current positions, city employees must receive their first dose of the vaccine or obtain an approved exemption by January 14, 2022. Nonetheless, Arbitrator Symonette addressed the “effects” issues as well. He awarded a $300 “compliance bonus” for vaccinated employees and ruled that side effects for vaccines should be considered work-related. Additionally, Arbitrator Symonette ruled that non-compliant employees would be treated as having resigned in good standing for purposes of reinstatement.
Areas of Focus for Union Representatives
The bottom line is that employers will likely be permitted to implement vaccine mandates. Lawsuits questioning the constitutionality of such mandates or seeking injunctive relief appear futile. By understanding this legal landscape, unionized employees can hope to negotiate the “effects” of a newly-implemented vaccine mandate. Rather than focusing on the implementation of the mandate itself, union representatives should focus on the following matters while negotiating with the employer:
- Alternatives to vaccination such as weekly testing and masking
- Consequences for employees who refuse the vaccine
- Time off for employees to get the vaccine
- Additional sick time for employees that experience illness/side effects as a result of the vaccine
- Reasonable timelines for employees to receive the first dose
Since 2001, Crabbe, Brown & James, LLP has served as general counsel for the National Fraternal Order of Police (“FOP”). The National FOP is a union and fraternal organization consisting of sworn law enforcement officers in the United States. The FOP has a membership of over 350,000 members organized in 2,100 chapters (Lodges).