As requirements for the COVID-19 vaccine and now the booster shots become more the widespread in New Jersey and across the nation, unions and their leaders are faced with a dilemma: Should they simply comply with a mandate designed to protect members’ health, or protect members’ rights to negotiate a new condition of employment?
The drama has played out most notably across the Hudson River in New York, where the police department’s 50,000-member union has launched a legal battle against the city and Mayor Bill de Blasio over an Oct. 29 vaccination deadline.
Some workers, unionized and not, have opted to quit rather than get the shot. And in New Jersey, Gov. Phil Murphy was accused by Republicans of bowing to union demands by waiting so long — until August — to impose a COVID-19 vaccine requirement for teachers, school employees and state workers.
With the October deadline to get the shot and the weeks separating the first and second Moderna and Pfizer doses, that meant unvaccinated teachers could start the school year at their blackboards.
Murphy has denied politics played into the decision. The Communications Workers of America New Jersey, which represents thousands of state workers, and the New Jersey Education Association, a union which represents 200,000 teachers and school employees, are prominent backers of Murphy’s reelection campaign.
The precedents on requirements imposed on unions are complicated and at times counterintuitive. Under the National Labor Relations Act, employers and unions have to negotiate terms of the union contract, “so employers need to abide by this,” said Judy Conti, the government affairs director for the National Employment Law Project in Washington, D.C. “If they impose mandates without negotiating, the workers can file an unfair labor practices charge,” Conti continued.
In September, President Joe Biden directed the Occupational Safety and Health Administration to promulgate regulations for businesses with at least 100 employees to impose the COVID-19 vaccine mandate. Those rules are still being developed.
The employment law firm Jackson Lewis in a Sept. 29 post noted that “the employer’s duty to bargain must be considered” when looking at any vaccine mandate. “If an employer has any choice over whether to institute a vaccine or testing rule, it must offer to bargain with the union over any decision to implement the policy,” principals Jonathan Spitz, Richard Vitarelli, Linda Carlozzi and Thomas Walsh, and associate Courtney Woods wrote.
“Such rules would introduce a new term and condition of employment for unionized employees.”
That would include the deadline for getting vaccinated and any paid time off; accommodations for medical and religious exemptions and the necessary proof; how to confirm vaccination status; alternatives such as social distancing and testing; who would perform the testing and who pays for it; incentives for workers to get the vaccine, and consequences for noncompliance.
Scott Unger, a shareholder at the Lawrenceville-based law firm Stark & Stark who practices employment, business and commercial litigation, said Biden’s announcement takes most of the blame and stress away from employers when it comes to deciding whether to impose a mandate. “Biden has actually made it easier on employers, because they have cover to say ‘we have 100 employees, so therefore we have to comply’,” Unger said.
“Typically the union negotiates for the best interest of their membership,” he continued. “This is a unique situation because I can’t tell you one way or the other what is in the best interest of the members. If I’m a union member, I may want everybody around me to be vaccinated. And if I’m a union member I may feel the opposite way. I may want to not get vaccinated and not lose my job because I’m not vaccinated.”
Tamara Lee, an assistant professor in the Rutgers School of Management and Labor Relations, agreed that state and federal law essentially puts businesses in the position of having to mandate the vaccine.
States have broad authority to handle public health, and that includes vaccine mandates that over the decades have been upheld by the U.S. Supreme Court. There’s the 1905 case of Jacobson v. Massachusetts, which allowed local school boards to mandate the smallpox vaccine. And in the 1922 case Zucht v. King, the high court ruled that a local Texas school district could exclude a child who did not get the smallpox vaccine.
But while governments have the power “to mandate vaccination for the safety of their residents, unions have a right to bargain for their members,” Lee said. “This is not a zero-sum game. Both of these things can and should occur.”
That includes the ability of unions to negotiate how to prove workers got the vaccine, to receiving paid time off for vaccine side effects and the types of accommodations available for religious and medical exemptions.
Community discussions with vaccine-resistant workers, especially “public-facing workforces like police officers, teachers, healthcare workers, and other essential workers,” could also go a long way, Lee said.
“Following these types of labor education and “common good” discussions with other community actors, legitimate concerns from workers and the communities in which they are embedded should be brought to the negotiating table in good faith,” she continued.
Going beyond the vaccine itself, employers need to implement much broader infectious-disease protocols, said Debra Coyle McFadden, head of the New Jersey Work Environment Council, a coalition of several dozen labor rights, community and environmental organizations.
Such measure would range from sanitization to contact tracing. “[V]accines are one piece of the puzzle — an important piece — to curb the spread of COVID in the workplaces,” she said in an email. “Employers should also have a multi-layer infectious disease plan that was developed with input from workers and union representatives.”