In February 2023, the California State University (CSU) adopted Executive Order 803, which revised its student vaccination policy. The new policy required only hepatitis B vaccination for students under the age of 19, recommended but not required other vaccinations, permitted medical and religious exemptions, and applied to students entering in or after the fall 2023 semester. The California Faculty Association (CFA), which represents CSU faculty, learned of the policy within two weeks and demanded to bargain over its health and safety effects.
CSU responded that the policy was not a mandatory subject of bargaining because it applied to students. However, it offered to meet so CFA could explain why it believed the policy had effects within the scope of representation. CFA declined and filed an unfair practice charge with the Public Employment Relations Board (PERB), alleging CSU violated the Higher Education Employer-Employee Relations Act (HEERA).
After a hearing, an administrative law judge concluded that although the decision itself fell outside the scope of representation, the 2023 policy had reasonably foreseeable health and safety effects on faculty, and CSU violated HEERA by implementing the policy without bargaining over those effects. PERB largely affirmed. It agreed the policy was subject to effects bargaining and found that CSU began implementing the policy in February 2023 without affording CFA notice and an opportunity to bargain. PERB declined to order rescission but directed CSU to bargain and to reimburse CFA for wasted or diverted resources and other harm. CSU filed a petition for writ of review.
The Court of Appeal first analyzed whether substantial evidence supported PERB’s conclusion that the 2023 policy had reasonably foreseeable effects on faculty health and safety. It held that substantial evidence supported that determination because testimony established that reducing vaccination requirements could lower community immunity and increase risk to immunocompromised faculty.
The Ninth Circuit then considered whether substantial evidence supported PERB’s finding that CSU violated HEERA by implementing the policy or refusing to bargain before CFA filed its unfair practice charge on March 8, 2023. It held that no substantial evidence showed CSU had taken concrete steps to implement the 2023 policy before CFA filed its unfair practice charge; adoption alone did not constitute implementation. The Ninth Circuit also held that CSU did not refuse to bargain. CSU offered twice to meet to clarify CFA’s effects demand, which satisfied its obligation to seek clarification before declining to negotiate.
The Ninth Circuit affirmed PERB’s determination that the 2023 student vaccination policy is subject to effects bargaining under HEERA, set aside PERB’s finding that CSU violated HEERA, and vacated PERB’s make-whole remedy.
Trustees of California State University v. Public Employment Relations Bd. (Jan. 26, 2026, No. B340818) ___Cal.App.5th___ [2026 Cal. App. LEXIS 38].