Legal Update Memo No. 24-2021 – PERB Rules on Mandatory Vaccination for Employees (K-12)

Download pdf: 24-2021 – PERB Rules on Mandatory Vaccination for Employees (KAS)

On July 26, 2021, the Public Employment Relations Board (“PERB”) issued its decision in AFSCME v. Regents of the University of California, PERB Decision No. 2783.[1]

The case involved two unions representing classified employees of the University of California (“UC”) system. The unions challenged the UC’s decision to implement a system-wide requirement that all employees and students “living, learning or working” on a UC campus receive the influenza vaccine. The unions alleged that the UC violated its duty to negotiate the decision to implement the policy, as well as the effects of the decision.

PERB held “the decision to adopt the influenza vaccination policy was outside the scope of representation because under the unprecedented circumstances of a potential confluence of the COVID-19 and influenza viruses, the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy as to University employees.” (Emphasis added.)

In reaching this conclusion, PERB specifically noted “no other safety precaution by itself, such as masking, social distancing, or social isolation, was sufficient to substitute for vaccination against influenza.” Furthermore, “mandatory influenza vaccination is not an issue that tends to create conflict between employees and management that could be resolved through collective bargaining…[it] is not one that divides people among management-union lines, but rather splits people – students, faculty, and staff – into those who can and will get vaccinated versus those who cannot or will not get vaccinated.”

The decision strongly supports management’s right to implement a mandatory vaccination policy. However, PERB found that while the decision is outside of the scope of collective bargaining, employers are required to engage in “effects” (or impact) bargaining with unions prior to implementation of the policy.

The general rule remains that “before implementing a non-negotiable change, the parties must first negotiate over aspects of the change that impact matters within the scope of representation.”

However, PERB did reaffirm that employers “may implement a decision on a non-mandatory subject prior to exhausting its effects bargaining obligation [when]: (1) the implementation date is based on an immutable deadline or an important managerial interest, such that delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiates in good faith prior to implementation and continues to negotiate afterwards as to subjects that were not resolved by virtue of implementation.”

Please note that the State Public Health Officer Order issued on August 11, 2021[2] does not obviate an employer’s obligation to bargain negotiable effects with their bargaining unit. Furthermore, schools may choose to implement vaccination and/or testing programs that are stricter than required pursuant to the Order. We recommend that your school contact legal counsel regarding any bargaining obligations in these areas.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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[1] The full text of the decision can be found here: https://perb.ca.gov/decision/2783H.

[2] The Order may be accessed at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Vaccine-Verification-for-Workers-in-Schools.aspx