Photo credit: Myra Klarman
2020, our annus horribilis, actually ended with some good news: coronavirus vaccines have been approved, appear to be safe and effective, and are being distributed. A burning question among employees everywhere, including musicians, is whether their employers can mandate vaccination as a condition of coming to work. News articles have been published answering that question in the affirmative. The general response has been some variation of “wait, what?”
It is true: employers generally have the ability to require vaccinations. But there are a number of nuances. First and foremost, because ICSOM orchestras are unionized, the threshold question is whether employers are obligated to bargain before implementing policies like mandatory vaccinations. That is key, because if bargaining is required, the question of whether to require vaccinations will be firmly in the hands of our orchestra committees and AFM Locals. But if the employer is not required to bargain, or if the parties do bargain an agreement for a mandatory vaccination policy, then rules applicable to employers generally will apply; and at that point, things get more complicated.
1. To bargain or not to bargain?
In unionized workplaces, an employer cannot unilaterally implement rules or procedures that implicate mandatory subjects of bargaining, absent a waiver by the union (more on that in a minute). It is well settled that health and safety rules are a mandatory subject of bargaining—as are most rules that could result in termination of an employee. Given that mandatory vaccinations would be both a health and safety rule and could lead to termination if an employee were to refuse, there should be no question that this is a mandatory subject of bargaining.
The question then turns on whether the union has waived the right to bargain, including through specific contract language the union has agreed to in a CBA. Unfortunately, as I discussed in a previous Senza article (Note: see “The Radical New NLRB” in the December 2019 issue), the legal test regarding waiver has changed significantly in recent years. Before the Trump administration changed the makeup of the National Labor Relations Board (NLRB) by appointing aggressively pro-employer Board members and General Counsel, a waiver needed to be “clear and unmistakable” to relieve the employer of its duty to bargain. Only if the union and employer “unequivocally and specifically express[ed] their mutual intention to permit unilateral employer action with respect to a particular employment term” would the NLRB find a waiver. For that reason, employers who tried to rely on management-rights clauses—those that typically reserve to the employer “the right to run its business” or “promulgate reasonable rules and regulations”—to unilaterally implement policies and procedures typically found no joy at the NLRB. Pre-Trump, the NLRB consistently found that such broadly worded language is not specific enough to find a waiver.
The current NLRB totally changed that standard. Under its 2019 ruling in MV Transport, 368 NLRB No. 66, the new test is whether a rule or procedure implemented by an employer without bargaining falls “within the compass or scope of contract language that grants the employer the right to act unilaterally,” based on “ordinary principles of contract interpretation.” That means that instead of looking for a waiver, the Board will now examine the CBA to see if the employer’s action is simply “covered by” an existing contract provision—including a management-rights clause. Only if the contract language does not “cover” the action does the NLRB examine whether a waiver has occurred.
So, under the current NLRB—the makeup of which will be with us for some time into the new administration, given that members serve staggered five-year terms—the answer to whether your employer must bargain over mandatory vaccinations will likely be found in your CBA. The management-rights clause will often be the focus. For example: if it contained language permitting the employer to “promulgate rules and regulations regarding the health and safety of employees,” the current NLRB would likely find that the employer’s right to require COVID-19 vaccinations is “covered by” that language—which would mean the employer would be able to implement mandatory vaccinations without being required to bargain.
But what if the management-rights clause were more broadly worded and did not specifically mention health and safety? For example, if the clause merely stated that management had the right to “direct its workforce” or “establish policies and procedures,” would a mandatory vaccination policy be “covered by” such language and permit the employer to implement it unilaterally?
There is no clear answer yet. Even under the old waiver standard, case law on mandatory vaccinations as a bargaining issue is sparse and the results mixed. In one case, a hospital implemented a mandatory flu vaccination policy for its nurses. The union filed a grievance, so an arbitrator (not the NLRB) heard the case. The management-rights clause gave the employer the right to “implement improved operational methods and procedures” and to “promulgate rules, regulations and personnel policies.” The arbitrator sided with the union’s position that such language would not permit a mandatory vaccination policy. When the hospital went to federal court to try to overturn the award, the Ninth Circuit Court of Appeals, applying the deferential standard of review through which courts examine arbitration awards, let the decision stand. See Va. Mason Hosp. v. Wash. State Nurses Ass’n, 511 F.3d 908 (9th Cir. 2007).
Afterwards, however, the hospital implemented a policy mandating facemasks for nurses who weren’t vaccinated. This time the union’s complaint was heard by the NLRB, which applied the old “waiver” standard but ruled that different language in the management-rights clause—management had the right to “determine the materials and equipment to be used”—indeed represented a waiver of the union’s right to bargain over facemasks. See Va. Mason Hosp., 358 NRLB 531 (2012).
Given such inconsistent precedent and the changing waiver standards, it is difficult to predict with certainty how the NLRB will view this issue. But since changing to the “contract coverage” standard in MV Transport, the NLRB has not hesitated to apply broadly worded management-rights clauses to permit employers to make unilateral changes without bargaining. A unilateral change requiring employees to take vacation time when taking FMLA leave was covered by language permitting the employer to make “reasonable plant rules and regulations of conduct.” Similarly, “the right to adopt reasonable rules and policies” permitted an employer to unilaterally revise its attendance policy to reduce the number of absences that would warrant termination.
The only real certainty is that the issue of bargaining over vaccine mandates will be heavily litigated. Any attempt by a unionized employer to unilaterally impose a mandatory vaccination policy will likely be met with an immediate demand for bargaining, followed by filing unfair labor practice charges if the employer refuses.
I recommend the same course for our orchestras: if your employer tries to unilaterally implement a vaccine mandate, then demand bargaining and consider going to the NLRB if the employer refuses. That should be the course even if the Local, orchestra committee, and musicians all agree that a mandatory vaccine is a good idea. By demanding bargaining, you are not necessarily saying “no” to a vaccine; rather, you’re requiring your management to discuss with you a workplace issue of utmost importance and negotiate a mutually acceptable agreement. Requiring that process is critical, regardless of what you ultimately end up doing with respect to vaccinations.
Although the NLRB will undoubtedly weigh in on this issue eventually, it takes time for charges to work their way up to a Board hearing; and, given that the Board will change over the coming years, it may be a while before the legal landscape is settled. As an interim step, sometimes the NLRB General Counsel will put out an advice memo on issues of immediate significance. Such memos are not binding authority, but do offer some indication of how the NLRB might view an issue. But, because the General Counsel is appointed at will by the President, a memo issued before January 20, 2020 might look far different from one issued a week later.
2. Employer Vaccinations Generally: It’s complicated.
Apart from any bargaining obligation, it appears likely that employers can mandate vaccinations, subject to limited exceptions. Employers have the right (indeed, the obligation) to maintain a workplace free of threats to the health and safety of their employees. That means that when faced with a contagious and deadly disease for which a vaccine is available that would prevent the spread of that disease in the workplace, an employer can mandate vaccinations; and, in a non-union workplace where employment is “at will” (and there is no state law to the contrary), the employer can terminate an employee who refuses.
In December 2020, the Equal Opportunity Employment Commission (EEOC) released guidance on this issue. While the EEOC did not explicitly affirm that employers can mandate vaccinations, the guidance assumes that employers have that right and instead addresses the legal implications of such a mandate.
The EEOC guidance confirms that there are essentially two exceptions available to employees who do not wish to be vaccinated: one based on health, the other on religion. Under the Americans with Disabilities Act (ADA), an employee can request an exemption from mandatory vaccination as a reasonable accommodation for a qualified disability. If the employee can provide medical substantiation that they may experience adverse effects from the vaccine, then the burden shifts to the employer to show that allowing the unvaccinated employee to come to work would be a “direct threat” to others in the workplace, and that there is no way to eliminate that threat without “undue hardship” to the employer.
That might be a difficult showing for many employers, including orchestras. For one thing, if the employer was operating safely before the vaccine became available—i.e., with the kind of robust safety protocols, distancing, and mask mandates that are common in many ICSOM orchestras—and kept operating in the same manner now, then it would be difficult for the employer to argue that inconsistent vaccinations among the workforce is truly a “direct threat.” In other words, if it was safe to come to work when no one was vaccinated, why would it suddenly be unsafe if only one or two people aren’t vaccinated? The calculus may change when the employer no longer keeps safety protocols in place, but that time is far away.
Further, employers who have permitted at least some employees to work remotely during the pandemic —as has been the case in many orchestras—would have a difficult time arguing undue hardship. Permitting an unvaccinated employee to work from home would obviously eliminate the threat to other employees; and if the employer has been allowing that throughout the pandemic, the employer can’t really argue it was an undue hardship all along.
With respect to religious exemptions, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of religion. To that end, employers must “reasonably accommodate the religious practices of an employee.” See 29 C.F.R. § 1605.2. The scope of “religious practices” is remarkably broad: aside from established religions, it encompasses “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” See 29 C.F.R. § 1605.1. However, the new EEOC guidance provides that an employer who has an objective basis for questioning the sincerity of a proffered religious belief can request “supporting information.”
Similar to ADA accommodations, the employer can refuse a requested accommodation if it would cause “undue hardship.” However, as the result of a 1977 Supreme Court case, TWA v. Hardison, 432 U.S. 63, the test for undue hardship is far more employer-friendly than under the ADA. If the requested religious accommodation would require the employer to “bear more than a de minimis cost,” it is an undue hardship. TWA also warned that an accommodation is not required if the result would be discrimination against other employees.
Therefore, in the case of a religious objection, if an employer can demonstrate that permitting an unvaccinated employee to come to work puts the safety of other employees at risk and that allowing the employee to work from home would increase costs to the employer by more than a minimal amount, then the “undue hardship” standard would be met and the employer could refuse the religious accommodation. Put another way, although the broad definition of “religious practices” may make it much easier for an employee to claim a religious objection than a disability, it may conversely be easier for the employer to invoke “undue hardship” to deny an accommodation for religious reasons than for a disability.
All that said, litigation on this question is virtually guaranteed. Given the age of the TWA decision, the trend in Supreme Court jurisprudence towards greater recognition of religious rights, and the Court’s new 6-3 conservative majority, the Court may well come up with new standards that are far more protective of employees seeking religious exemptions. (Indeed, there are petitions for certiorari currently pending that seek to overturn the “de minimis” test, though not yet with respect to vaccination.) This issue will keep courts busy for some time.
The EEOC guidance also addresses some practical concerns with mandatory vaccinations. Employers should not try to administer the vaccine themselves, or even contract with a third party to do so, because the questions that health providers need to ask vaccine recipients would violate the ADA’s prohibition on asking employees for disability-related information. (A better course for employers with vaccine mandates would be to require proof of vaccination.) Such information must be kept in a confidential file (like the screening questions and temperature checks that are now ubiquitous in workplaces). The guidance also reminds employers to engage in an “interactive process” with any employee who requests an accommodation, and warns them not to retaliate against such employee for asking.
3. Other State and Federal Laws: Clouding the Issue Even More.
As if the question of mandatory vaccinations weren’t complicated enough already, there are other layers. First, there is legislation pending in several states that would prohibit employers from requiring vaccinations of employees. (A bill introduced in the Minnesota legislature is an extreme version of this: it would make mandatory vaccination a felony, subject to a minimum 10 years’ imprisonment.) Conversely, one proposed bill in New York would actually require COVID-19 vaccinations for everyone in the state. (This is supported by the New York State Bar Association as well.) There is a real possibility that the answer to the question of mandatory vaccinations will largely depend on where you live.
Second, the expedited approval process for the new COVID-19 vaccines may be significant. These vaccines were approved pursuant to the FDA’s “Emergency Use Authorization” (EUA). FDA guidance regarding products made available under EUA states that recipients must be informed they have the right to refuse administration of the product. To that end, the fact sheet for health care providers administering the Pfizer vaccine instructs providers to inform the recipient that they have “the option to accept or refuse” the vaccine; and the fact sheet for recipients reiterates that “it is your choice to receive or not receive the Pfizer-BioNTech COVID-19 Vaccine.”
There is not a well-developed body of law regarding EUA, let alone the application of a EUA product to employment practices. But certainly, one could envision an argument that an employer should not be permitted to require employees to take a vaccine that was approved by the federal government on the condition that the recipient has a choice whether or not to take it.
4. What’s the best approach?
Given the uncertainty in the legal landscape and the myriad of bargaining, ADA, Title VII and other issues that come into play, it is hard to imagine that any orchestra management—or any employer, really—would plunge ahead with a mandatory vaccination policy. (Indeed, much of the legal guidance issued by management-side law firms since the EEOC guidance was published warns against mandates.) Such a policy would only be inviting lawsuits and/or unfair labor practice charges, not to mention prominent media attention.
For the same reason, orchestra committees and Locals should proceed carefully. As I mentioned earlier, if your management tries to implement a vaccine mandate, then at the very least, request bargaining (and consider going to the NLRB if management refuses). Each committee and Local should be empowered to determine what is best for their musicians.
But even a bargained agreement requiring vaccinations for every musician in the orchestra has pitfalls. Aside from the host of legal implications discussed above, it is highly unlikely that the musicians in any orchestra will be of one mind on this issue; and when it comes to what we do with our bodies, or our religious views, the beliefs are often strongly held and vociferously expressed. The potential for conflict and division within the orchestra is high.
We all dream of a day when COVID-19 vaccination has become so widespread that we’ve achieved something like herd immunity and musicians can return to work without masks, without playing 10 feet apart, and without fear. Mandatory vaccinations may provide a quicker way to get there. On the other hand, a voluntary vaccine policy, together with a focus on education and encouragement, may get us there more smoothly. It is also impossible to separate employment concerns with the issue of vaccinations in society at large, a society that, as we know, seems almost hopelessly polarized, with a tendency to politicize nearly every issue having to do with the coronavirus. Proceed with caution.
Note: the author is ICSOM General Counsel
