PERB Determines That Effects of an Employer’s Decision to Mandate Flu Vaccine for Faculty and Staff During COVID-19 Pandemic Was Subject to Negotiations

07.28.2021

On July 26, 2021, the Public Employment Relations Board (“PERB” or “Board”) issued its decision in Regents of the University of California (2021) PERB Decision No. 2783-H, that held that the university was not required to negotiate the decision to implement a policy mandating influenza vaccination for all staff within the University of California system, because the topic was outside of the scope of representation. In support of its decision, the Board stated, “the need to protect public health was not amenable to collective bargaining” and such need “outweighed the benefits of bargaining over the policy as to University employees.” However, the Board also concluded that the University was required to negotiate the effects of the decision before implementation.

Although the vaccination mandate at issue was for influenza and employees in higher education, the decision by PERB could be a sign of future rulings if COVID-19 vaccine requirements for K-12 staff, teachers, or other public entity employees come before PERB.

Background

The complaint alleged the Regents of the University of California (“University”) violated the Higher Education Employer-Employee Relations Act (“HEERA”) “by issuing an Executive Order requiring ‘all students, faculty, and staff living, learning, or working’ on University premises to receive an influenza vaccination by November 1, 2020”, without first providing “prior notice of an opportunity to meet and confer over the decision or its effects” with the effected unions. The University’s prior vaccine policy only required staff at medical facilities to receive the influenza vaccine. A later revision of the policy extended the date of compliance to November 16, 2020. After that date, unvaccinated employees who did not receive an accommodation were not allowed to be on any University site.

The Executive Order was issued on July 31, 2020. On August 7, 2020, the University sent an e-mail to all University unions regarding the announcement of the Order. In response, the University received multiple demands to bargain over the decision and effects of the Order. However, the University refused to bargain over the decision on the belief the policy “was not a mandatory subject of bargaining but would bargain over the effects of the policy.” The University met with their unions to bargain over the effects, but no agreements were reached prior to the filing of the unfair practice charge on October 19, 2020. The primary issue before the Board was: “[W]hether the University’s decision to mandate that all employees who work on University premises receive an influenza vaccination is within the scope of representation.”

PERB’s Decision on University’s Action to Adopt a Mandatory Influenza Vaccination Policy

Citing California Faculty Assn. v. Public Employment Relations Bd. (2008) 160 Cal.App.4th 609, 616; PERB concluded “the University’s decision to adopt a mandatory influenza vaccination policy was outside HEERA’s scope of representation.” Therefore, the University did not commit an unlawful unilateral change in issuing the Executive Order mandating staff and students receive the influenza vaccine.

Under HEERA, a subject is within the scope of representation if it satisfies a three-prong test: (1) it involved the employment relationship; (2) it is of such concern to management and employees that a conflict is likely and collective bargaining is an appropriate means of resolving the conflict; and (3) the employer’s obligation to negotiate would not unduly abridge its freedom to exercise managerial prerogatives. The same test applies to school and community college districts under the Educational Employment Relations Act (“EERA”).^[1] While the Executive Order did involve the employment relationship, the Board concluded the Order did not satisfy the second and third prongs to be deemed within the scope of representation.

Regarding the second prong, PERB asserted “mandatory influenza vaccination is not an issue that tends to create conflict between employees and management that could be resolved through collective bargaining.” The rationale being the conflict—vaccine v. non-vaccine—is not a management-employee issue, but rather an issue that divides individuals based on their views on vaccines.

On the third prong, PERB followed existing case law and PERB precedent in recognizing “a public employer’s concern for employee and public safety can outweigh the benefits of bargaining.” The Board recognized the overlap of the flu season with the COVID-19 pandemic “created an unprecedented public health emergency.” PERB relied on testimony from two expert witnesses presented by the University, who testified for the need of a vaccine requirement because such a policy would be “more effective than other methods of encouraging vaccination” and that “no other safety precaution by itself, such as masking, social distancing, or social isolation, was sufficient to substitute for vaccination against influenza.”

PERB’s Decision on the Effects of Bargaining

PERB concluded the University did not satisfy its requirement to meet and confer in good faith prior to implementation of the Executive Order, because it failed to negotiate the effects of its decision.

Long standing PERB precedent has held that an employer may implement a non-negotiable decision while continuing to negotiate the effects of that decision when: (1) the implementation date is based on an immutable deadline or an important managerial interest . . . (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. (Compton Community College District (1989) PERB Decision No. 720.)

Here, PERB held, because non-compliance had potential for disciplinary action, there were identifiable negotiable effects to the vaccination policy. In reviewing the third prong outlined in Compton Community College District, PERB concluded the “record shows that the University refused to bargain over alternative consequences for not getting vaccinated.” The University never addressed a policy for non-compliant employees. Further, the stance the University took in its published FAQs was contrary to the stance it took during negotiations. As a result, the University was found to have violated its duty to bargain in good faith.

While this case involved the influenza vaccine, it has broad reaching impacts as districts and other public entity employers consider whether to mandate COVID-19 vaccinations. Should a district or other public entity employer make such a decision, it is important that notice be given to all employee associations, and the District or other public entity employer set aside sufficient time for good faith negotiations to take place before and after implementation of the decision.

If you have questions regarding this alert, please contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.

Emaleigh Valdez, summer clerk in AALRR’s San Diego office, assisted in the preparation of this ALERT.

^[1] PERB uses a different version of this test for public entity employers under the Meyers-Milias-Brown Act (“MMBA”). (See County of Sonoma (2021) PERB Dec. No. 2772-M.) However, the overlap between the two tests suggests that the Board would consider similar factors as it did in this case, in the event a dispute arose under the MMBA concerning mandatory vaccination policies.