Issue – Is a University required to bargain with the affected employee organizations over its decision to require mandatory vaccines for all staff within the University system before it adopts the policy? The short answer is no. The University does not need to bargain over the decision to require mandatory vaccines because the decision is outside the scope of representation. However, the University must negotiate the effects of the decision before implementing the policy. The University did not do so, and therefore, implementing the vaccination policy was an unlawful unilateral change.
What happened?
On March 4, 2020, Governor Newsom declared a state of emergency due to COVID-19. On March 11, 2020, the World Health Organization announced that COVID-19 had become a pandemic. The CA Department of Public Health and Centers for Disease Control and Prevention advised the public that vaccinating against influenza during the 2020-2021 flu season was “more important than ever.” The overlap of the ongoing COVID-19 pandemic and the 2020-21 flu season created an unprecedented public health emergency.
On July 31, 2020, the University issued an Executive Order requiring “all students, faculty and staff, living, learning or working” on University premises to receive a flu vaccine by November 1, 2020. When the Order was issued in July 2020, no FDA-approved vaccination against COVID-19 was available.
Following the University’s announcement of the Order, the unions demanded to bargain over the decision and effects of the Order. The University refused to bargain over the decision saying that it was not a mandatory subject of bargaining but would bargain over the effects. Meetings occurred, but no agreements were reached before the unfair labor charge was filed with PERB.
The unions’ unfair labor charge alleged the University violated HEERA (Higher Education Employer-Employee Relations Act) by not providing notice and meeting and conferring over the decision or its effects before issuing the Executive Order. The University admitted it refused to meet and confer over the decision to adopt the vaccination policy but argues the decision was outside the scope of representation, and it satisfied the obligation to negotiate over the effects of the decision.
PERB then had to analyze whether the decision to mandate vaccination was within the scope of representation by determining whether (1) the subject involved the employment relationship; (2) it is of such concern to management and employees that a conflict is likely and bargaining is appropriate to resolve the conflict and (3) whether the employer’s obligation to negotiate would inordinately limit its freedom to exercise managerial prerogatives.
PERB found the Executive Order did not meet the second and third elements making it a mandatory subject of bargaining. First, PERB held the mandatory vaccinations was more an issue that separated groups based on their opinions of vaccines than one where employee/management conflict could be resolved in bargaining. Second, the unprecedented circumstances of potential overlap of COVID-19 and the influenza viruses created the need to protect public health, outweighing the benefits of bargaining over the policy.
Under PERB precedents, an employer may implement a non-negotiable decision (i.e., the vaccination policy) while negotiating the effects, if the employer gives sufficient advance notice to allow meaningful negotiations before implementation, provides an implementation date that is based on an unchangeable deadline or important managerial interest and the employer negotiates in good faith before implementing the policy.
Here, PERB found the University’s implementation of the policy before completing good faith negotiations over its effects was an unlawful unilateral change, violating HEERA (Govt Code §3560 et seq) and directed the University to make whole any employee that suffered a loss as a result of the vaccination policy (i.e. discipline, unpaid leave, out of pocket payment of vaccination costs) and to cease and desist from unlawful conduct and to post physical and electronic notices of its violation.
Take Away
While the vaccination mandate at issue here was for influenza and affected employees in higher education, this decision could foreshadow future PERB rulings if public entity employers mandate COVID vaccines.
Stay Safe and Healthy!
Muna Busailah has been a partner in the firm for 27 years and representing peace officers in police law and litigation cases, in administrative, state and federal venues.