The NLRB Weighs in on OSHA’s Emergency Temporary Standard

The National Labor Relations Board (NLRB) has weighed in on OSHA’s Emergency Temporary Standard (ETS) requiring employers with over 100 employees to mandate COVID-19 vaccinations or require weekly testing of employees.  Although many employers who are hesitant (for a variety of reasons) to enact vaccine mandates initially were pleased to have an alternative, the NLRB announced in General Counsel Memo 22-03 that because the ETS includes options for compliance, unionized employers subject to the ETS have a duty to bargain with employee representatives over policies they are required to adopt.

The employer’s duty to bargain applies not only to whether the employer will allow weekly testing instead of enacting a vaccine mandate, but also to other areas covered by the ETS. For example, although the ETS expressly states that employers may require employees to pay for weekly COVID-19 testing, according to the NLRB’s guidance, the designation of which party will be responsible for paying those costs may be a mandatory subject of collective bargaining.  Accordingly, unionized employers should seek counsel to ensure that their responses to the ETS fulfill both OSHA’s requirements and any collective bargaining obligations.


The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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Tim represents management in all areas of labor and employment law.