November 12, 2021

The National Labor Relations Board’s (NLRB) General Counsel’s office has issued a memorandum to provide information to all NLRB field offices on employer bargaining obligations under the recent OSHA Emergency Temporary Standard to Protect Workers from Coronavirus (ETS).

The memo explains that although NLRB General Counsel Jennifer Abruzzo does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that employers covered by the National Labor Relations Act have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment to the extent the ETS provides employers with choices regarding implementation.

Specifically, the memo states that although an employer is not obligated to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally when it has some discretion in implementing those requirements. To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.

The full memo can be found on the NLRB General Counsel’s website here.

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