Effects of employer’s flu vaccine mandate required negotiation
August 9, 2021
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This article is provided by ACSA Partner4Purpose AALRR.
On July 26, 2021, the Public Employment Relations Board issued a decision that held that the University of California was not required to negotiate the decision to implement a policy mandating influenza vaccination for all staff within the UC system, because the topic was outside of the scope of representation. In support of its decision, the Board stated, “the need to protect public health was not amenable to collective bargaining” and such need “outweighed the benefits of bargaining over the policy as to University employees.”
However, the board also concluded that the University was required to negotiate the effects of the decision before implementation. PERB concluded the University did not satisfy its requirement to meet and confer in good faith prior to implementation of the Executive Order, because it failed to negotiate the effects of its decision.
Long standing PERB precedent has held that an employer may implement a non-negotiable decision while continuing to negotiate the effects of that decision when: 1) the implementation date is based on an immutable deadline or an important managerial interest; 2) the employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and 3) the employer negotiates in good faith prior to implementation and continues to negotiate afterwards as to the subjects that were not resolved by virtue of implementation.
Here, PERB held, because non-compliance had potential for disciplinary action, there were identifiable negotiable effects to the vaccination policy. As a result, the University was found to have violated its duty to bargain in good faith.
While this case involved the influenza vaccine, it has broad reaching impacts as districts and other public employers consider whether to mandate COVID-19 vaccinations. Should a district make such a decision, it is important that notice be given to all employee associations, and the district set aside sufficient time for good faith negotiations to take place before and after implementation of the decision.
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