Can Federal Unions Bargain Over Mandatory COVID-19 Vaccinations?

What would a mandatory vaccination for federal employees mean in terms of labor relations?

Mathew Tully wrote an excellent article about mandating COVID 19 vaccinations for federal employees. This article doesn’t deal with individual employees being required to take COVID-19 vaccinations; rather it is about whether there is a duty to bargain over the requirement for vaccinations for federal employees.

He mentioned three types of federal employees who may be required to be vaccinated: those involved in public health care, public safety or federal corrections. For the most part, all three of these types of employees are heavily unionized in the federal sector. He also specifically mentioned the Veterans Administration which has a significant union presence. However, any federal employee, whether or not they come into contact with the public, may be required to be vaccinated.

Bargaining Obligation and Working Conditions

For there to be a bargaining obligation, there must be change in working conditions. Is a vaccination a working condition?

To be a working condition, it must both apply to bargaining unit employees and to the work of bargaining unit employees. A vaccination would appear to meet the definition of a working condition: it applies to employees in a bargaining unit and their work.

The next question: is it a change? Most employees are not required to take specific vaccinations. Even the Veterans Administration, in its 2011 collective bargaining agreement with AFGE, provided that employees with respect to immunizations and vaccinations will be “given the option to accept or not to accept the immunization/vaccination.” Therefore, requiring employees to be vaccinated would be a change in working conditions.

What Can Unions Bargain About?

When there is a change in working conditions, the Agency must give the union notice and an opportunity to bargain. This becomes the difficult part for unions. What can they bargain about?

The first impulse for some unions might be to assert that management can’t make the change, and cannot require employees take the shot. Some jobs have physical job requirements. Certain first responders are required to be able to meet physical requirements throughout their tenure as an employee. Likewise, it is reasonable that employees could be required to have certain vaccinations to continue to be employed. The union argument that management can’t make the change would be difficult to win. 

So, what can the union bargain about? Can a union propose that employees not be required to have a vaccination?

This is a variation on the argument that management may not require the vaccination. Would such a proposal be negotiable?

An absolute prohibition on a vaccination would probably be non-negotiable. It would interfere with managements’ right to establish internal security practices intended to safeguard the person and property of the government. Just like security procedures required to be followed by employees entering a federal building to protect employees and government property the argument would be that a vaccination does the same thing, the vaccination protects employees.

As Mathew Tully’s article points out, there are various reasons why individual employees may not want to take the vaccine. Some may refuse based on religious grounds or health reasons (such as allergies to ingredients within the vaccination). Others may refuse because they are not certain the vaccine is safe.

That is a different issue than whether management can require employees to take the vaccine. The Agency can require the vaccine and the union can’t stop it. However, individual employees may have legitimate reasons for not wanting to take the shot.

If an employee refuses the vaccination, the Agency may decide to remove the employee for refusing to follow an order. This could potentially mean reducing the number of employees available to care for COVID-19 patients in hospitals. It would also mean removing employees who have been following the safety protocols for treatment of COVID patients and have been at risk for many months. Even though they shouldered all those risks using PPE, now just because they won’t take a vaccine they will be fired. 

What the union could propose is a due process system to handle employee refusals. Rather than bog down the EEO system with reasonable accommodation requests or potentially be forced to remove employees, the Agency and union could agree on a system that expeditiously handles refusals. This system could quickly handle refusals and provide an expeditious result based on a fair and timely review of employee concerns. It also could develop alternative work arrangements for employees who do not want to take the vaccine. The concept is to jointly develop a system that will make it easier and more efficient for both employees and the Agency. 

Any bargaining that takes place must be done on a fast track which ensures that both the union and the Agency are providing employees with quick and thoughtful answers to the challenge of the new vaccines.

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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