Employers in the age of COVID are moving beyond mask mandates and requiring vaccines, including boosters, as a condition of continued employment. What does this mean for an employer’s obligations to its unionized workers? In August, the Commonwealth issued a requirement that all correctional facility workers be initially vaccinated by October (either two shots by Pfizer or Moderna or one J&J shot), and receive an unspecified number of future booster shots, or face discipline and loss of employment. The policy permitted exemptions for medical or religious reasons. The Commonwealth did not give the workers’ union prior notice or an opportunity to bargain to resolution or impasse prior to adopting the policy. The union filed a charge with the Department of Labor Relations that the Commonwealth had engaged in prohibited labor practices, challenging both the decision to adopt the policy itself and the failure to bargain over the impact of the policy. By decision dated November 3, 2021, DLR Investigator Margaret M. Sullivan partially upheld and partially dismissed the charge.
The Investigator dismissed the charge that the Commonwealth committed an unfair labor practice by the failure to provide prior notice and an opportunity to bargain over the decision to require the initial vaccine (either two shots by Pfizer or Moderna or one J&J shot) and by refusing to bargain over the decision on demand. She concluded that the ongoing pandemic, the concerns over emerging variants, the congregate housing of inmates, and the need to provide adequate staff for safe operations of the correctional facilities all weighed in favor of the Commonwealth’s right to adopt the decision unilaterally. The Commonwealth committed an unfair labor practice, though, by failing to bargain over the impacts of requiring both the original vaccines and by failing to bargain over the decision to require the booster shots and the impact of that decision on unit members’ terms and conditions of employment. In particular, the Investigator found that the decision to require an unspecified number of boosters for an unlimited amount of time in the future was overly broad and not narrowly drawn to address the Commonwealth’s stated interests. As a result, the Commonwealth was required to bargain to resolution or impasse.