PERB: Vaccination Mandate a Management Right During Pandemic

Regents of the University of California (2021) PERB Dec. No. 2783-H (Issued on 7/26/21)

[Full Disclosure: I represented the University in this case so I don’t claim to be unbiased.]

In July 2020, the University of California issued an Executive Order, effective for the 2020-2021 flu season, requiring that students, faculty, and staff who are living, learning, or working at any University location be vaccinated against influenza by November 1. The University issued the order at the recommendation of health professionals who were worried that the intersection of the 2020-2021 flu season with the ongoing COVID-19 pandemic would create an unprecedented public health emergency. Specifically, the University’s experts feared that a winter surge of COVID-19, along with the normal winter surge for influenza, would overwhelm hospitals throughout California. Based on this threat to public health, the University took the position that the Order as it applied to union-represented employees was a managerial right; and therefore the Order was not negotiable with the unions other than over its effects.

Several unions, citing to federal precedent, filed an unfair practice charge against the University. In its decision, the Board found that:

[T]he 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.

In finding that the policy was not amenable to collective bargaining, the Board stated that, “the subject of influenza vaccinations is not one that divides people along 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 Board also stated that, “The decision to require influenza vaccinations in response to a public health hazard that affects not just employees, but also students and the general population, thus was not amenable to collective bargaining.” These statements are notable because—in my opinion—they would apply equally, if not more, to a COVID-19 vaccination requirement.

Although the Board held that the vaccination policy was a management right, the Board held that any negotiable effects still had to be negotiated with the unions. On this issue the Board found fault with the University’s effects bargaining. Nevertheless, the Board continued to acknowledge that there are circumstances where an employer can implement a decision on a non-mandatory subject prior to exhausting its effects bargaining obligation if: (1) the implementation date is based on an immutable deadline or an important managerial interest, such that a 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 the subjects that were not resolved by virtue of implementation.

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