Benjamin R. Patchen, Esq. and Tiffany R. Allen, Esq., Campbell Durrant, P.C. | August 2021
The 2021 early summer season initially brought relief and hope to many as transmission of the COVID-19 virus steadily declined. The pandemic restrictions that kept us away from loved ones were lifted, and we were able to travel and enjoy our favorite summer activities. Employers brought employees who were working from home back into the office, and relaxed masking and social distancing policies for vaccinated employees. However, as summer progressed a new, stronger mutation of the coronavirus, named the Delta variant, began affecting the United States. As of August 23, 2021, the seven-day average of reported infections was 2,513 cases per day, up 25.6% from a week prior and up more than five times over the last 30 days.
Many public employers are now considering whether to require their employees to get vaccinated, not only due to the Delta variant, but also in light of the FDA’s full approval of the Pfizer vaccine on August 23, 2021. This article addresses potential policies for nonunionized and unionized employees and the legal implications of mandating the vaccine.
The EEOC and the DOJ have issued guidance allowing employers to ask employees their vaccination status along with providing proof of vaccination, and to mandate the vaccine, subject to religious and disability accommodations. However, the EEOC has cautioned that employers should be careful about asking employees the reasons why they are not vaccinated, as this could inadvertently result in an employee sharing a medical condition and possibly violating the ADA.
On August 23, 2021, the Pfizer vaccine was formally approved by the Food and Drug Administration for use in individuals 16 and older, making it the first to move beyond emergency use status in the United States. This decision is expected to increase vaccine mandates nationwide, as some employers were waiting on full and not emergency use approval before implementing a vaccine mandate.
For at-will employees, the answer is straightforward. Employers can mandate vaccination as a condition of employment or require regular testing and mask wearing for employees who choose not to vaccinate. Under the EEOC guidance, employers must appropriately consider requests for accommodations due to disability and religion.
The analysis is more complicated for unionized employees in Pennsylvania. In the past, the NLRB held that requiring employees to receive the flu vaccine and to wear masks was a mandatory subject of bargaining. That case, however, did not involve a pandemic or a highly contagious strain such as the Delta variant of the COVID-19 virus. Although the Pennsylvania Labor Relations Board (PLRB) often adopts law developed under the National Labor Relations Act (NLRA), the issue as to whether Pennsylvania public employers must bargain with unions before implementing a policy mandating vaccination as a condition of employment or requiring testing and mask wearing for unvaccinated employees remains unclear.
The PLRB will eventually decide whether such a vaccination policy is a managerial prerogative, and can be implemented without negotiation with the unions, or whether it is a mandatory subject of bargaining, and must be bargained. Even if the policy is not a mandatory subject of bargaining, however, Pennsylvania public employers may be required to bargain over the impact of such a policy. Due to the imminent threat of the Delta variant, many public employers are taking varying positions in mandating the vaccine. Some are implementing mandatory vaccination policies without bargaining with the union under a theory that mandatory vaccination is a management right while others are bargaining prior to issuing a mandatory vaccination policy, especially bargaining over the effects of the policy on unvaccinated employees. Many employees are not disciplining their unvaccinated employees but are instead requiring masking and periodic testing for this group of individuals. None of these policies should be implemented before reviewing the potential practical and legal implications.
In deciding on mandatory vaccination policies and union bargaining strategy, all applicable collective bargaining agreements should be reviewed for safety language or similar language that requires the employer to provide a safe workplace. A mandatory vaccination policy may fall within the realm of such a provision and provide a strong basis for a mandatory vaccination policy.
Public employers considering implementing either a mandatory vaccination policy or a policy requiring masks and testing for unionized employees should contact labor counsel for in-depth recommendations on how to implement such a strategy.