Mandatory Vaccination Programs in Unionized Workplaces?

Much has been written about employers requiring their employees to receive the COVID-19 vaccination. The EEOC’s December 16, 2020 Guidance gives employers a green light from an ADA perspective to implement such a program so long as the employer fulfills its accommodation obligations under Title VII (religion) and the ADA (disability). The EEOC’s Guidance does not deal with the myriad of other potential legal claims to challenge a mandatory program.

Very little has been written about the additional challenges of implementing such a program in a unionized workplace. An article I wrote on that topic was published last week by Wolters Kluwer, a leading global provider of information, software, and services for professionals. Here is the article: “On the Labor Front: Requiring employees in a unionized workplace to be vaccinated”.

Meanwhile, during this early stage of the vaccine’s rollout, employers seem more focused on educating, encouraging and cajoling employees to be vaccinated. If most employees elect to get vaccinated, we may never get to the issue of requiring employees to be vaccinated as a condition of employment. However, the fewer the number of employees who elect to be vaccinated, the greater the likelihood that employers consider a mandatory program, especially in industries where employees have regular contact with the public. As discussed in my article, for employers whose employees are represented by a union, the EEOC’s Guidance is only the first step in moving toward a mandatory program. Dealing with its labor contract and the union may present additional legal and practical challenges.

Image by mohamed Hassan from Pixabay

Coronavirus and the National Labor Relations Act

Until last week, there were a host of leave management issues concerning employees who had tested positive for COVID-19 or were isolating at home. As noted in my blog yesterday, the recently-enacted Families First Coronavirus Response Act has paid leave and sick day provisions that resolve most of those issues, at least on the federal level.

Another federal law employers should have on their COVID-19 radar screen is the National Labor Relations Act (NLRA), one of the nation’s oldest employment laws. Passed in 1935, the NLRA regulates the relationships among employees, unions and employers. While most of the law deals with employers whose employees are represented by a union, some sections give rights to unrepresented employees as well and create obligations for their employers. For example, if employees band together to protest unsafe working conditions, the NLRA may protect their right to do so.

I recently wrote an article entitled Coronavirus and the National Labor Relations Act for my On The Labor Front column published by Wolters Kluwers, a a global provider of professional information, software solutions and services,  To access that article, click here.



Health Emergency Leave under the Families First Coronavirus Response Act

President Trump signed The Families First Coronavirus Response Act (FFCRA) last Wednesday, March 18, 2020.  The FFCRA has eight “Divisions,” lettered A to G.  Division C is the “Emergency Family and Medical Leave Expansion Act” (EFMLA). Division E is the “Emergency Paid Sick Leave Act” (EPSLA). The EFMLA, in general, provides paid time off during the current health emergency for an employee to care for a child under 18 years of age. The EPSLA provides paid sick leave for an employee for various reasons related to COVID-19. This blog will discuss the EFMLA; my next blog will discuss the EPSLA. If you are administering leaves under these provisions, please read the law carefully and watch for regulations from the Secretary of Labor. To say this situation is changing rapidly is an understatement.

Health Emergency Leave

The EFMLA adds “Health Emergency Leave” as the seventh general “entitlement to leave” category to the Family and Medical Leave Act and adds an employer pay obligation for that category. This category sunsets on December 31, 2020.

HEL is available due to “a qualifying need related to a public health emergency,” defined as an emergency relating to COVID-19 declared by a federal, state or local authority.  An employee has such a need when “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  The EFMLA has definitions for “school” and “child care provider” as well.

 “Employee” and “Employer” Definitions Differ From FMLA

Unlike the FMLA which requires an employee to have worked for the employer from whom leave is sought for at least 12 months, the employment period for eligibility under the EFMLA is only 30 calendar days.

Employers with at least 50 employees must provide FMLA leave. The EFMLA does not apply tp large employers. It only applies to employers with fewer than 500 employees. It also gives the Secretary of Labor authority to issue regulations to exempt smaller employers—those with fewer than 50 employees–if fulfilling the obligations under the ERMLA “would jeopardize the viability of the business as a going concern.”

Also, employers of health care providers and emergency responders may elect to exclude such employees from the EFMLA. The Secretary of Labor is authorized to issue regulations concerning this exclusion as well. Continue reading