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PERB Holds that Mandating Vaccinations is Outside the Scope of Representation
On July 26, the Public Employment Relations Board (“PERB”) issued an important decision concerning the negotiability of decisions regarding vaccination requirements. PERB’s decision opens the door for public employers to adopt mandatory COVID-19 vaccination policies, and do so without first negotiating the decision. Significantly, the decision also clarifies PERB’s rules on the duty to bargain the effects of implementing a non-negotiable mandatory vaccination policy.
In Regents of the University of California (2021) PERB Decision No. 2783-H (“Regents”), PERB held that the University’s decision to require that employees be vaccinated for influenza was outside the scope of representation and that the University was therefore not obligated to bargain the decision with affected employee organizations prior to its adoption. While PERB concluded that the University was still obligated to bargain the effects of the decision, PERB’s holding that the decision itself was not negotiable removes a major obstacle preventing public employers from adopting vaccination requirements for their employees.
In addition to reviewing the Regents decision, the purpose of this bulletin is describe the framework under which PERB analyzed critical questions regarding the scope of representation and effects bargaining obligations relative to the adoption of a mandatory COVID-19 vaccination policy. Provided below are the requirements for compliance with applicable statutory bargaining obligations and suggestions for how to establish a vaccination policy that will withstand scrutiny by PERB.
The Scope of Representation
PERB commenced its analysis concerning the scope of representation and decisional bargaining obligations with a restatement of a statutory language at the center of the tension between the rights of employers and employees. The confusing and somewhat contradictory statutory language provides that the scope of representation includes “wages, hours, and other terms and conditions of employment,” but excludes the “merits, necessity, or organization” of an employer’s operations.
PERB indicated that this provision recognizes “the right of employers to make unconstrained decisions when fundamental management or policy choices are involved,” but that the right is qualified and not absolute. PERB provided that, where an employer’s decision is not primarily about the conditions of employment, but nonetheless directly impacts employment, there must be a balancing of interests between the employer’s authority to make an unconstrained decision and the benefits to the employer-employee relationship of bargaining that decision.  PERB then provided that, in the context of decisions related to employee and public safety, “public employer’s concern for employee and public safety can outweigh the benefits of bargaining.”
Applying that framework to the University’s vaccination requirement, PERB reviewed the circumstances under which the University required influenza vaccinations (i.e., in the midst of a public health emergency) and the stated purpose for which the University required such vaccinations of its employees (e.g., to address public health concerns related to an overburdened health care system). As a result, PERB concluded that the University’s decision, which applied not only to employees, but students as well, was not a limited work rule, but was part of a broader effort by the University to affect public health and improve health outcomes for the public as well as employees.
Before making a decision on whether the balancing favored the University’s right to set public health policy without first bargaining its vaccination decision or the rights of employee organizations to bargain the decision, PERB analyzed a series of private sector labor decisions, the Virginia Mason Hospital decisions, that purportedly held that vaccination policies are within the scope of representation. After concluding its review of those cases, PERB found that the cases were unpersuasive and declined to extend their holdings to public employers in California.
PERB found the Virginia Mason Hospital decisions distinguishable from the circumstances at the University for several reasons, including the following: (1) the University’s policy was a vaccination requirement and not an influenza prevention policy that provided alternative to vaccinations; (2) the University’s policy applied to all individuals on University premises and was not a limited work rule that applied only to employees;,  and (3) the University adopted its requirement during a “once-in a-century pandemic.”
As a result of its analysis, PERB concluded that the University’s decision to adopt a mandatory vaccination policy was outside scope of representation and therefore not subject to decision bargaining.
Elements of a Non-Negotiable Mandatory Vaccination Policy
The Regents case advises that the following elements are necessary for establishing that the decision to adopt a vaccination requirement is outside the scope of bargaining:
Element One – Establish That Vaccinations Are Mandatory: For a vaccination policy decision to fall outside the scope of bargaining, public employers should require that employees be vaccinated, rather than allow employees to choose between vaccination and an alternative, but less effective means of preventing transmission of the virus that causes COVID-19, such as mandatory face coverings or regular COVID-19 testing. Adopting such a requirement will demonstrate that one of the principle purposes of the policy is to affect public health and improve health outcomes for the public as well as employees.
Element Two – Establish The Immediacy of the Vaccinations Requirement: Public employers should expressly provide that the requirement is based on present public health considerations and that the urgency of addressing such issues requires immediate action that would be compromised by a lengthy delay due to bargaining. While public employers should provide that the present public health conditions require immediate action, public employers should also provide sufficient time to engage in effects bargaining before implementing the requirement.
Element Three – Establish a Vaccination Requirement for Non-Employees: Public employers should consider requiring that all individuals entering its worksites and facilities be vaccinated for COVID-19, and not limit the requirement to its employees. Adopting such a requirement will demonstrate that policy is not a work rule limited to employees, but, as provided above, intended to improve public health in the community generally. Public employers that are inclined to restrict public access to its worksites and facilities to fully vaccinated individuals should contact counsel about other legal considerations implicated by such a decision.
Element Four – Establish that the Vaccination Requirement is Time-Limited and Only Effective During the Present Public Health Emergency or While Certain Health Risks are Present: Public employers should expressly provide that the vaccination requirement only applies during the present public health emergency as determined by objective criteria such as the local, state or federal declarations or proclamations of emergency or other criteria such as the incidence rate of COVID-19 in the community. Public employers should further provide that the policy will be revisited once such emergencies conclude or the risk factors no longer present. This will establish that the requirement is narrowly tailored and directly related to the pandemic.
After concluding its analysis of the scope of representation and determining that the University was not obligated to bargain the underlying decision to require vaccinations, PERB addressed the University’s obligations related to effects bargaining.
PERB provided the general rule concerning effects bargaining: Before implementing a non-negotiable change, the parties must first negotiate over aspects of the change that impact matters within the scope of representation.
PERB then discussed the rule articulated in Compton Community College District (1989) PERB Decision No. 720 (“Compton CCD”) (“Compton Rule”) whereby an employer, under limited circumstances, may implement a decision on a non-negotiable change prior to exhausting statutorily required bargaining process. That rule requires that the employer satisfy each of the following rules prior to implementing such a decision: (1) the implementation date was not arbitrary but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision at all; (2) the employer gave the union notice of the decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and (3) the employer met and conferred in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation.
While PERB concluded that the University failed to satisfy the Compton Rule because it failed to meet and confer in good faith prior to its implementation of the vaccination requirement, LCW believes that PERB may be amenable to the application of the rule given the exigent and extenuating circumstances facing public employers with the spread of the Delta variant and increased COVID-19 incidence rates across the state, and particularly in communities with low vaccination rates. In order to satisfy the requirements of the Compton Rule, a public employer would need to satisfy each if the requisite elements identified above.
Steps for Bargaining Effects Associated with a Vaccination Requirement
Below are practical steps that LCW recommends public employers undertake in order to discharge their effects bargaining obligations:
Step One – Identify Negotiable Effects of the Vaccination Requirement: Public employers should identify the foreseeable effects on the working conditions of the affected employees. In the University of California decision, PERB addresses several potential negotiable subjects that might be affected by a vaccination requirement, including the following: (1) the payment of vaccine costs for employees who did not have insurance; (2) the availability of vaccine clinics; (3) alternatives to unpaid leave or discipline as consequences for not getting vaccinated; (4) timing concerning the enforcement of the prohibition on access to worksites and facilities for employees who had not complied; and (5) exemptions to the vaccination requirement. In the context of COVID-19, public employers should identify these and other issues at an early juncture and be prepared to address them in the context of effects bargaining with affected employee organizations.
Step Two – Provide Advance Written Notice of the Vaccination Requirement: Public employers should provide reasonable advance written notice of the vaccination policy and an opportunity to bargain before the decision is implemented. A reasonable notice is one where the public employer clearly and unequivocally describes its vaccination policy and clearly informs the employee organizations of the nature, scope and timing of the implementation of the policy. Public employers should be very clear regarding the effective date of the policy and provide that, absent agreement on the effects of the policy by such date, the employer will implement the vaccinations requirement, but continue to negotiate the effects. Public employers should discharge this notice obligation as soon as is practicable after arriving at a firm decision on the vaccination requirement.
Step Three – Evaluate Labor’s Response: Labor’s response to the notice must identify clearly the matter(s) within the scope of bargaining on which it proposes to bargain and specify its desire to bargain effects as opposed to the decision itself. Failure by the employee organizations to properly request effects bargaining may waive the right to bargain. If the employee organizations’ response is unclear as to the effects that they wish to bargain over, the public employer may request that the employee organization clarify their request before agreeing to negotiate.
Step Four – Negotiate Effects: If a request to bargain effects is clear and received timely, the public employer must bargain in good faith regarding the foreseeable effects until agreement or impasse is reached, even if such agreement or impasse occurs after the date of implementation. It is critical that the public employer satisfy the requirements of the Compton Rule in order to be positioned to implement the vaccination policy prior to completing the bargaining process.
By knowing the general analytical framework concerning the scope of representation and the rules of engagement for effects bargaining, public employers will be well-positioned to defend the necessity of a mandatory vaccination policy. LCW attorneys are familiar with issues related to the scope of representation and obligations related to effects bargaining issues and are available to assist public employers navigate these complicated issues in order to establish a defensible and non-negotiable vaccination requirement.
 While PERB analyzed the scope of representation question under the Higher Education Employer-Employee Relations Act (“HEERA”), the analytical framework that PERB used should apply equally to public agencies subject to the Meyers-Milias-Brown Act (“MMBA”) and the Educational Employment Relations Act (“EERA”).
 In order to facilitate public agencies use of this bulletin, the terms referenced herein in this bulletin are terms used in the MMBA, rather than the HEERA. Compare Government Code section 3504 [MMBA] and Government Code section 3562 [HEERA]. While these terms are substantially similar, they are not the same. The EERA, on the other hand, does not include this language. However, PERB used a balancing test similar to that language in Anaheim Union High School District (1981) PERB Decision No. 177, which was decided under EERA, to determine that the vaccination policy was not within the scope of representation. (See also, Riverside Unified School District (1989) PERB Decision No. 750.)
 Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 663 (“Building Material”) [interpreting similar language in the MMBA.].
 See Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 273 (“Richmond Firefighters”); Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638; Building Material, supra, 41 Cal.3d 651, 660; and County of Orange (2018) PERB Decision No. 2594-M, p. 18 (“Orange I”).
 Regents of the University of California (2021) PERB Decision No. 2783-H (“University of California”), p. 24, citing Building Material, supra, 41 Cal.3d 651,
 See Virginia Mason Hospital (2012) 358 NLRB 531, Virginia Mason Hospital (2011) 357 NLRB 564, and Virginia Mason Hosp. v. Washington State Nurses Assn. (9th Cir. 2007) 511 F.3d 908.
 University of California, supra, PERB Decision No. 2783-H, p. 26.
 Public employers should note that existing authority currently permits vaccine verification at local government offices serving the public. (See California Department of Public Health (“CDPH”), Guidance for Face Coverings, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx (last updated on July 28, 2021.) Public employers that adopt such verification protocol provide allowances to individuals who have qualifying disabilities under the Americans with Disabilities Act (“ADA”) or the Fair Employment and Housing Act (“FEHA”) who cannot be vaccinated or who hold sincere religious beliefs under Title VII of the Civil Rights Act of 1964 or the FEHA and who refuse to be vaccinated. Public employers should also be mindful about Constitutional concerns related to the right to assembly and speech. LCW attorneys are available to assist public employers with these complex legal issues.
 University of California, supra, PERB Decision No. 2783-H, p. 27, quoting Gompers Preparatory Academy (2021) PERB Decision No. 2765, p. 14.
 See footnote 9.
 Trustees of the California State University (2012) PERB Decision No. 2287-H, p. 11.
 Compton Community College District (1989) PERB Decision No. 720 (“Compton CCD”), pp. 14-15.
 University of California, supra, PERB Decision No. 2783-H, p. 29.
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.