Vaccinations, unions and the law


The legal landscape of pandemic vaccine requirements continues to evolve, this time in California: State Public Employment Relations Board ruled that the University of California system had the right to impose the flu shot on all students and employees last fall without first consulting its employee unions. The system was worried about a “twindemia,” meaning the flu and COVID-19 season, and tried to alleviate it before the COVID-19 vaccine was available.

“The implementation of the university’s influenza vaccination policy was a direct response to a potential confluence of the global COVID-19 pandemic and an influenza virus outbreak causing catastrophic results and loss of life. unnecessary lives, ”the board wrote in its decision. “This potential disaster has affected not only the university’s employees, but also its students and the general public who may have needed to use the teaching hospitals. In these unprecedented circumstances, force the university to negotiate the decision to require influenza vaccination would limit its right to determine public health policy during a pandemic.

At the same time, the board ruled that the UC system violated the state’s labor law by adopting the mandate before negotiating with its employee unions on the effects of the decision. These effects include the consequences of non-compliance.

The UC system took the partially favorable decision of the board as a victory.

“We are delighted with the Public Employment Relations Board’s decision to recognize that the University of California’s influenza vaccine mandate was outside the scope of negotiations,” said Heather Harper, spokesperson for the system. “As the PERB noted, the unprecedented circumstances of a potential confluence of COVID-19 viruses and influenza create significant risks that policy faced.”

Harper said the university will continue to work with its union partners throughout the negotiation process to address the policy adoption issues cited by the PERB.

Last summer, fearing that the approach of the annual flu season could push university hospitals already caring for COVID-19 patients to the brink of collapse, system president Janet Napolitano signed a Executive Decree on the mandate of the influenza vaccine. The original deadline to get the vaccine was November 1, 2020. The order, which was later extended to November 16, 2020, listed several medical exemptions, such as severe egg allergies, and allowed requests for exemptions. for disability and religious.

Three unions of university employees – the Teamsters, the American Federation of State, County and Municipal Employees, and the professional and technical employees of the university, Communication Workers of America, who represent health professionals, professionals research support and office workers, among other non-teaching groups – soon demanded to negotiate on the mandate and its effects.

The university ultimately said it would not negotiate the tenure decision, but would negotiate the implications. The university and the UPTE, for example, have met four times, with the union demanding leave for employees to be vaccinated, covering the costs of vaccination, the place where employees could be done. vaccinate, the consequences for those who refused to be vaccinated, the vaccination deadlines and exemptions. The union and the university agreed to a time off to be vaccinated, and the university provided the union with a list of places to be vaccinated and encouraged workers to use their health insurance. But that was it.

The unions then filed unfair labor practices complaints against the university. The Teamsters asked for an injection against the warrant, which was denied.

In reviewing these cases, the board said the main question was whether the influenza vaccine’s mandate fell within the framework of union representation. Citing state labor law, counsel stated that the elements that fall within this scope relate to the employment relationship, are likely to be resolved through collective bargaining and will not compromise management prerogatives essential to the mission of the university.

Although immunization mandates involve the working relationship, the board found, they are unlikely to benefit or be resolved through collective bargaining. To illustrate the latter point, the board cited a 1989 PERB decision regarding a smoking ban inside Riverside schools, in which the board concluded that “collective bargaining between the district and employee organizations is not are not an appropriate way to deal with this public health risk ”. In addition, PERB has repeatedly found that public health and safety can outweigh the benefits of collective bargaining.

Regarding the effects of the mandate, however, the board stated that “before implementing a non-negotiable change, the parties must first negotiate the aspects of the change that have an impact on the matters under consideration. of the field of representation “.

The board admitted that the university had refused to negotiate the consequences of not being vaccinated and had given conflicting messages as to those consequences, of not being allowed on campus to be put on unpaid leave. Because policies that may lead to disciplinary action have a direct link with pay and benefits, the board said, the “categorical refusal of an employer to negotiate on matters falling within the scope of representation. constitutes a violation in itself of the obligation to negotiate in good faith ”. Any recourse would involve making affected employees whole, the board said, although there is little evidence that anyone suffered a loss under the policy.

Flu vaccine order refers to the 2020-21 flu season, but now that a COVID-19 vaccine is available, the university has order all students and employees to be vaccinated against the latter for the next academic year.

The PERB decision sets a clear precedent for the university’s right to require vaccination itself for all employees.

William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College at City University of New York, said it was “very likely” that the California board would apply. the same reasoning for future cases. involving the negotiability of a COVID-19 vaccination mandate in the California public sector. And the decision “will certainly have relevance if or when” state labor relations agencies look into similar cases elsewhere, Herbert said.

Unions are a way for states beyond California to be called upon to influence vaccination mandates. The courts are another. Last week, a federal appeals court strongly sided with Indiana University in a case brought by students who argued that a COVID-19 vaccine warrant violated their rights to a due process.

Writing for the three-judge panel in this case, Judge Frank Easterbrook wrote: “People who don’t want to be vaccinated can go elsewhere. Many universities require the SARS-CoV-2 vaccination, but many others do not. Opportunities.”

Todd Zywicki, professor of law at George Mason University, is to pursue this establishment on its mask or vaccine policy. Zywicki, who is not vaccinated, says he has already contracted COVID-19 and therefore has natural antibodies to the virus. Even though federal health officials are urging vaccination of those who have already been infected, Zywicki says a vaccine would offer him no additional benefit. He also says he shouldn’t be forced to wear a mask under George Mason’s “coercive” and “illegal” policies.

Harper of the UC System said COVID-19 and influenza vaccinations remain “a critical step towards protecting the health and safety of the UC community and the general public.” The system’s COVID-19 vaccine mandate for this fall is therefore “vital to a return to in-person activities.”

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