On August 23, 2011, by a vote of two to one, a three-member panel of the National Labor Relations Board ("Board") ruled that a hospital whose nurses are represented by a union does not have the authority to unilaterally implement employee vaccination programs because, in the Board's view, ensuring patient safety is not a core purpose of the enterprise.

The matter arose at Virginia Mason Hospital, an acute-care facility in Seattle, Washington, that employs approximately 5,000 individuals, 599 of whom are registered nurses represented by the Washington State Nurses Association. Because the hospital is an acute-care facility, the majority of its patients are elderly and, perhaps unsurprisingly, sick. In the interest of preventing the transmission of influenza from hospital employees to susceptible patients, the hospital established a program requiring all employees (including the unionized nurses) to obtain a flu vaccination. For those unwilling to be vaccinated because of religious or personal health concerns, the hospital provided employees with the option of either undertaking an oral drug therapy regimen that would diminish their likelihood of flu transmission or simply wearing a mask over their mouth while at work for the duration of the flu season.

The nurses' union opposed the implementation of the flu-prevention program, notwithstanding both the program's obvious value to the hospital's patients and the workforce's overwhelming support of the program (more than 98 percent of the 5,000 employees voluntarily received the vaccination). In reversing its Administrative Law Judge's decision, the Board held that the National Labor Relations Act ("NLRA") prohibits a hospital from implementing public safety programs without first bargaining over the proposal with a union that represents its employees. In so doing, the Board rejected the hospital's argument that the flu-prevention program is exempt from the bargaining process under the "core purpose of the enterprise" test established in Peerless Publications. Virginia Mason Hospital, 357 NLRB No. 53 (August 23, 2011). While the Board recognized the supposed viability of the Peerless defense (even though no business has ever satisfied its relatively straightforward requirements), it refused to acknowledge that flu prevention is a "core purpose" of hospital care.

Assessing the Ruling's Broader Impact on Labor Relations

This decision impedes a hospital's ability to promptly provide quality health care to its patients. Former Chairman Wilma Liebman, in what was one of her last decisions with the Board, ignored the obvious reality that the prevention of sickness is a hospital's central business. Such disregard for the delivery of safe health care is both troubling and contrary to the general public's belief that people go to a hospital for the treatment and prevention of illness. As with the issuance of a complaint by NLRB Acting General Counsel Lafe Solomon against Boeing in response to its decision to add production of 787 Dreamliners to a newly constructed facility in South Carolina, this decision demonstrates the NLRB's readiness to challenge employers' freedom to run their businesses. See Steven Greenhouse, Labor Board's Exiting Leader Responds to Critics, N.Y. TIMES, Aug. 30, 2011, at B1.

Assessing the Ruling's Broader Impact on OSHA and ADA Compliance

To the extent the hospital's policy was also intended to benefit the safety and health of the hospital's employees (rather than just patients), the Board's decision is in direct conflict with the policy on flu vaccine requirements established by the Occupational Safety and Health Administration ("OSHA"). Addressing this precise issue (i.e., whether an employer may require an employee to accept a flu vaccine), Jordan Barab, then Acting Assistant Secretary of Labor for OSHA (now Deputy Assistant Secretary), stated that "although OSHA does not specifically require employees to take [flu] vaccines, an employer may do so." See OSHA's Interpretation Letter, dated Nov. 9, 2009. Just as the hospital's policy allowed an opt-out provision for religious or personal health concerns, OSHA's formal interpretation also protects employees from adverse employment action if they opt out of a mandatory flu-shot requirement based on "a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine)." Short of that reasonable belief, OSHA permits employers to make such programs mandatory.

Beyond the context of flu shots, this NLRB decision raises serious questions about employers' ability to implement their safety and health programs and to comply with rigorous OSHA standards or OSHA's broad General Duty Clause (29 U.S.C. § 654, 5(a)(1)) without running afoul of the NLRA. For example, OSHA's General Duty Clause requires employers to furnish a workplace free from serious "recognized hazards." This means that if an employer or an employer's industry recognizes a certain condition as hazardous, the employer is required by the Occupational Safety and Health Act to take measures to protect employees from that hazard. If those measures are now mandatory subjects of bargaining, the employer faces a real conundrum: implement the safety measures to protect against fines from OSHA but risk consequences from the Board, or bargain over the safety measures and risk a serious penalty from OSHA (or worse, a serious injury or illness to an employee or others).

A similar conundrum exists in the context of employer compliance with the Americans with Disabilities Act. While employers are required by law to provide reasonable accommodations for those qualified employees suffering from a disability, bargaining may unjustifiably delay or forestall the implementation of disease transmission reduction programs necessary for the protection of employees suffering from diseases or drug therapy that weakens their immune system.

What Unionized Employers Should Do Now

  • Understand that the unilateral implementation of policies or procedures affecting employees may draw an unfair labor practice charge from and litigation with the NLRB.
  • Document the "core business necessity" for any required unilateral changes in advance of anticipated union information requests.
  • Implement changes as needed to protect core business values.
  • Put the burden of requesting negotiations on the union by providing it with notice of any unilaterally implemented changes.
  • Consult your legal counsel before unilaterally implementing changes in the workplace that you believe might affect unionized employees' working conditions, as the law in this area is rapidly changing.

For more information about this Advisory, please contact:

James S. Frank
New York

D. Martin Stanberry
New York

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