October 14, 2021

Vaccine Mandates Spur Rise in Union Interest: What Employers Need to Know and Do

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Driven by the ubiquity of COVID-19 vaccines, the coronavirus pandemic is finally on its way out, and more businesses are beginning to return to fully normal operations. However, as leaders grapple with the prospect of mandating that employees receive their COVID-19 vaccine as a contingency of their employment, some individuals are getting concerned - with some advocating for a mandate and some strongly against it. As a result, many unions and labor organizations are seeing another opportunity to take advantage.

Earlier this year, we talked about how unions, specifically in the healthcare sector, were using COVID-19 to drive a wedge between workers and their employers in the fight for better terms and conditions of employment. Now, with vaccination efforts in full swing, mask mandates are subsequently easing up, and the outcry for personal protective equipment (PPE) and other health and safety measures has subsided. Vaccination requirements are the new battleground for unions and employers. Mandating the vaccine among employees is legal - yet complicated. It is still likely to be fought over in the courts, as we've also written about, with unions using every angle to gain a negotiating edge.

Vaccine Mandate or No Mandate, Unions Are Taking Advantage

Unlike the early days of the pandemic, when labor organizations could use a company's lack of adequate health and safety measures, training and scheduling, or PPE (whether the reality or not) against them, times have changed. The vaccine is the hook now, and in many instances companies can be put in what feels like a no-win situation. If a company has a vaccine mandate in place, unions are trying to use that as a way to claim the business is ignoring workers' rights to manage their own health on their terms. If a company has no mandate in place and no immediate plans to introduce one, unions can conversely use that as a way to show the business is not ensuring a safe working space for employees. Attacks on management are coming from both sides of the mandate debate.

This difficult situation can mean one of two things for businesses - either 1) they succumb to the fact that, mandate or not, they cannot win this argument and unionization is inevitable; or 2) they enact union avoidance and mitigation measures to head off any potential or further interest in unionization. When it comes to the second option, the Labor and Employment attorneys at Buchanan have decades of experience deploying various tools and tactics to help.

1. For Non-Unionized Companies - Carefully Manage Response to Mandate Reactions

For businesses that want to consider mandating the vaccine, how leadership responds to the inevitable pushback from employees not wanting to receive the vaccine must be carefully curated.

It is well known that employees may refuse vaccination on the grounds that they are protected under the Americans with Disabilities Act (ADA) or have other medical reasons that prevent or contraindicate vaccination. Or they can claim exemption based on sincerely held religious beliefs, practices or observances, which prevent vaccination (Title VII of the Civil Rights Act of 1964).

However, even in a non-unionized environment, disciplining employees for speaking out on vaccination beyond these grounds could violate workers' rights to "concerted activity" as defined by the National Labor Relations Act (NLRA). Concerted activity defines employees' rights to act with coworkers to address work-related issues, including talking with one or more coworkers about wages and benefits or other working conditions, which could include vaccine mandates. Companies that impede concerted activity open the door for unions to make some noise within a company, file a charge with the National Labor Relations Board, and lead to potential labor organization issues.

2. Train Managers and Leaders on Labor Practice Rules

Without properly educated and trained managers who know what rights employers have when it comes to organizing, issues can arise without leadership even knowing. Concerted activity as mentioned above is just one of the sets of rules that govern labor relations and how union campaigns may work. In this current environment with vaccine mandates and non-mandates dominating so much of the labor conversation, supervisors can quickly find themselves in untenable positions handling union discussions or other organizing efforts without proper training. Often, by the time managers find out about labor organizing discussions, it's too late. The labor relations attorneys at Buchanan can assist with all types of training in this area to ensure managers and supervisors know when a unionization effort may be boiling and what the rights of all employees are in these situations.

3. No Industry Is Immune from Unionization

COVID-19 has changed everything when it comes to business and labor. And, no longer is it only the usual industries seeing increased conversation about organizing. As the vaccine debate continues, more workers across industries are seeing the value in organization, and just because a business may not boast a large workforce or isn't in the traditional manual labor setting, healthcare, or education space, do not think that employees would not consider unionization. From small coffee shops to white collar offices, businesses of all types are seeing their workforce increasingly interested in organizing, and those leaders who do not prepare for these conversations will be left at a significantly increased risk.

Prepare Now Before It's Too Late

Beyond the conversation surrounding COVID-19 vaccination, labor also has an ally in the White House, which is working to make unionization efforts easier and simpler. It truly is a perfect storm for seeing an increase in labor organization, and now is the time for management to prepare as much as possible for what lies ahead.

This starts with engaging the right legal counsel who can help handle the potential for union activity or manage any legal and communications challenges that may arise. Our attorneys have deep experience addressing these issues, developing customized management training programs, and managing all of the legal challenges that come with labor organization in 2021 and beyond.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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