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3 Emerging Issues For Unions And Employers As Crisis Shifts

By Braden Campbell · February 16, 2021, 9:04 PM EST

The expanding rollout of the COVID-19 vaccine signals a shift in the crisis, bringing vaccination and other novel labor relations issues to the fore as employers and unions hammer out rules for the changed workplace. Here, Law360 looks at three emerging issues for unions and employers.

Vaccination Programs

While the limited supply of available vaccines has so far been reserved for essential workers and at-risk populations, it's only a matter of time before they're available to the public at large. When that time comes, vaccination may be a hot issue for unions and employers.

The question of whether to mandate vaccination can be fraught, requiring employers to grapple with questions under wage, discrimination and other laws. In the union context, vaccine requirements are likely a mandatory subject of bargaining, said Jason Kim, a partner at Neal Gerber & Eisenberg LLP who represents employers in labor relations.

This designation means employers must negotiate with unions before requiring that workers get vaccines. But this obligation has a big exception: If the collective bargaining agreement includes a broad "management's rights" clause empowering the employer to make unilateral changes, it may not have to negotiate, Kim said.

"Absent that … you're going to be expected to sit down and bargain" before implementing a vaccine mandate, Kim said. "If you don't, it's subject to an [unfair labor practice charge] that can be filed with the NLRB."

Steven Swirsky, a labor attorney with Epstein Becker Green who advises health care employers, said this issue is already percolating. He said most employers have so far avoided these legal complications by forgoing mandates, especially while vaccine supplies are still low.

"I think a lot of employers … consider making it mandatory and then kind of evolves into 'How can I encourage, how can I support it?'" said Swirsky, the co-chair of the firm's labor management relations practice.

If employers seek to mandate that workers get the vaccine, unions aren't likely to put up too much fuss, said Richard McCracken, an attorney with McCracken Stemerman & Holsberry LLP who represents unions. But vaccines may be a perilous subject for unions nonetheless, he said.

Under the National Labor Relations Act , unions must represent all members equally. This means a union would have to do what it could to protect the job of a worker who refuses to get a vaccine. If unions don't advocate for vaccine skeptics, they may face charges, he said.

"I think [vaccination is] going to be more of an issue between unions and their members than unions and employers," McCracken said.

Altered Conditions

As the COVID-19 pandemic exploded in the U.S. last spring, many employers instituted incentive pay or relaxed attendance rules to smooth over disruption and ease strife among workers. Unionized employers that move to rescind these policies as the pandemic subsides may struggle to put the cat back in the bag.

Because these changes benefited their members, unions generally did not push back when employers offered to boost pay or give workers more flexibility, Neal Gerber's Kim recalled. But such policies remain a mandatory subject of bargaining on rescission regardless of the union's response to their rollout, he said.

"The same type of analysis applies as with the mandatory vaccinations, it's a mandatory subject of bargaining," Kim said.

Kim said he advised his clients to make clear that any changes they rolled out were discretionary, but he has heard that the issue is percolating in some workplaces. If employers don't have contract language on their side, they may be in for a fight, he said.

If unions resist efforts to roll back incentives and structural changes, employers may want to think twice before they push back, said Charles Jellinek, who co-leads the labor and employment practice at management-side Bryan Cave Leighton Paisner LLP. While many employers have an arguable right to rescind these policies without their unions' permission, it may not be worth the hit to morale.

"That's something that employers want to be cognizant of as they start thinking about rolling some of these things back," Jellinek said. "Is it really necessary to go back to the way you were doing it before if business efficiencies haven't been affected?"

The Future

While the vaccine promises to restore a degree of normalcy, many workplaces have undergone fundamental changes in the last year. Those changes are likely to inform contract talks as collective bargaining agreements come up for renegotiation.

Few shifts have been as dramatic as the move to remote work for many office-based employers. While the risks of COVID-19 exposure necessitated this change, many workers have come to enjoy the additional flexibility it affords, and it presents cost savings for employers, said McCracken, the union attorney.

"I think you're going to see more permanent work from home," he said. This shift raises questions that will have to be addressed in bargaining contracts, such as who pays for work equipment and how employers track workers and ensure they're staying on task, he said.

Unions and employers alike may also angle to make changes to "force majeure" clauses that give employers leeway in emergency situations, EBG's Swirsky speculated. In the wake of this crisis, employers may seek more protection, while unions are more wary of concessions to management. Given these opposing interests, neither side is likely to be fully happy with any changes, but revised language could provide greater certainty for bargaining partners, he said.

Bryan Cave's Jellinek said he sees recall rights as an "area for skirmish" between unions and employers as workplaces continue to reopen and bring back workers. While CBAs generally include clear rules for letting workers go and bringing them back, application may be hazy so long after layoffs, he said.

As contracts come up for negotiation, employers may seek more flexibility when laying off and recalling workers, rather than following the last-in, first-out seniority model common to union contracts, he speculated.

"I think unions would push back on that very hard," Jellinek said. "The holy grail for collective bargaining is seniority rules."

--Editing by Haylee Pearl.

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