By Jim Cline and Mark Anderson
Recent COVID Guidance on vaccinations and vaccines issued by Labor and Industries and the Governor’s Office has been passed through local agencies and has resulted in quite a bit of confusion. This article is our attempt to clear up that confusion and provide direct guidance from Cline and Associates as to the current state of vaccine and mask requirements.
Previous advice. By way of background, Cline and Associates has provided extensive COVID related legal guidance in previous blogs that might be worth reviewing again at this time. Most of those blogs are also supported by further extensive legal materials and memos on the Cline and Associates Premium Website.
In December 2020 we provided a detailed discussion of management’s right to invoke a claim of “emergency” to justify their COVID related rules. Also in December, we wrote an article discuss how the emergency defense might fare in labor arbitration hearings. In March we summarized the duty to bargain mandatory vaccine orders and presented that information in greater detail in a Premium Website Webcast.
L&I Update. On May 21, 2021, L&I issued an update stating that “fully vaccinated employees do not have to wear a mask or socially distance at work, unless their employer or local public health agency still requires it.” The L&I update also indicates, however, that “before ending mask and social distance requirements, employers must confirm workers are fully vaccinated — by having the worker either sign a document attesting to their status or provide proof of vaccination.”
Questions Posed. This L&I update was filtered to our labor clients and treated as an L&I mandate. We have been asked about the legality and enforceability of this L&I “mandate” and whether it could be legally challenged in court. This blog addresses several questions raised about this update and links to a more detailed legal memo posted to the Cline and Associates Premium Website. Among the questions we address:
- Is the L&I update “enforceable” and lawful?
- Is it binding on the Employers?
- Is it binding on Employees?
- Can an employer demand vaccine records and where are those stored?
- How does this update relate to EEOC and CDC guidance?
- What are available Union response options?
To summarize our response to all these questions: This is not an “enforceable” L&I “rule” but is only guidance. Therefore, there’s no real basis for a legal challenge. But if it was an enforceable “rule” it’s doubtful that a legal challenge would be successful. Employers are still obligated to develop their own internal rules. And in that connection, there likely continues to be a duty to bargain with the collective bargaining representative. But in terms of any demand to bargain, the likely status quo includes a mask mandate that had preceded this L&I guidance.
We’ll break out our analysis to each of these questions.
Legal Basis for L&I “Update.” As an administrative agency, L&I has limited authority to create binding “law.” “Laws” are created by the Legislature. The Legislature can and does extend authority to agencies to adopt “rules” that can have some binding legal effect. There must be a specific grant of rule-making authority to an agency for it to have such authority over a given subject. The “rules” must be consistent with the “laws” adopted by the Legislature. And before any “rule” can be effective, agencies must go through extensive rule-making procedures.
The Legislature has conferred fairly broad rule-making authority to L&I. That authority likely extends to the ability to create rules to keep the workplace safe, including safety requirements as to communicable diseases.
In this case, though, L&I did not go through a specific rule-making process to mandate mask-wearing. Without undertaking that action, it does not appear that the workplace mask “mandate” is enforceable as binding law. But that doesn’t end the analysis and, in fact, focusing on L and I misses the more significant point — it is the Employers who are imposing these requirements. While they are pointing to the L&I Guidance as their basis for their orders, this is simply a clever way of pointing to a third-party “legal” requirement to excuse their discretionary decision-making. The frustration and questions we’ve heard about the L&I “mandate” miss the point that there seems to be no enforceable L&I mandate covering vaccines and masking.
Had L&I gone through the rulemaking process, could it have developed an enforceable mandate? Very possibly. As indicated, L&I has broad workplace safety rulemaking authority. Some have also claimed that the Governor has broad “emergency” authority that L&I can utilize. That authority, though, is likely overstated. While the Governor’s Office has some broad authority during emergency responses, it’s unclear whether this exercise of authority in this circumstance would hold up in court. While the Governor has broad authority to declare a “State of Emergency” that doesn’t mean the Governor (or the agencies) have unbridled authority for all actions they may deem fit to respond to such emergencies.
Employer Responses to L&I Guidance. One main takeaway you should have from this discussion is that the focus on the L&I Guidance is misguided. The guidance is not binding, and it is the Employers that are making the relevant workplace decisions at issue here. While they may cleverly be pointing to L&I’s May 21 notice as “binding” on them, that is simply misdirection from the fact that they are ultimately the parties setting the workplace standards.
Duty to Collectively Bargain. Given that the rules at issue here relate to “working conditions” and are locally discretionary and not an apparent part of a state law mandate, is there a duty to negotiate? The Cline and Associate’s position is “yes,” there exists a duty to bargain these issues. While the Employers might claim the “emergency” defense as a basis to refuse to negotiate, our opinion is that under the circumstances in existence now, that defense is not likely to prevail.
But having a “right” to negotiate and having the ability to remove existing mandates are not the same thing. First of all, we have to ask: What’s the current status quo? Negotiations always start from the status quo.
Viewed from that vantage point, the L&I guidance, if implemented, doesn’t really change anything. While your members might feel differently, let’s consider the situation. To date (and to our knowledge) Washington public safety agencies haven’t been imposing any vaccination mandate. And this guidance doesn’t either. Employees are free to get vaccinated or not get vaccinated. And as we’ve previously indicated, any employer mandate to get vaccinated is likely subject to a duty to bargain.
As to the mask mandate, that mandate is not new. It’s been a mandate in effect in most agencies since the Spring of 202o. All L&I (and the related employer directives) are indicating is that if you get vaccinated, you are thereby relieved of the mask mandate. The order isn’t imposing additional working conditions on employees; it’s relieving them of previous working conditions.
Does that mean that there is no duty to bargain this adopted standard? No, there likely is a duty to bargain whether employees are required to mask up. But the imposition of that condition on unvaccinated employees does not represent a change.
Bargaining Demands. Some employees who elected not to get vaccinated are upset with this continued mandate. In response, unions are free to file bargaining demands to amend those mandates. But having the ability to demand negotiations and having the ability to demand a reversion of the rule are not the same thing. As indicated, the “relevant status quo” likely includes the existing mask mandate. So, the union would be the party moving to change the status quo. If the status quo did not include the existing mask requirement, the union would be in a stronger position.
There is a complex and nuanced PERC doctrine that can come into play as to some workplace COVID rules. PERC has a doctrine called “dynamic status quo.” The “dynamic status quo” doctrine recognizes that there can be short-term events that allow a revision in the status quo and that when those events expire, the employer should revert to the previous status quo as the starting point for bargaining. There certainly are arguments to be made that as the COVID pandemic unwinds, employers must revert to pre-pandemic working conditions. We are anticipating a number of staffing and skimming issues where the “dynamic status quo” principle may come into play.
Does that doctrine apply here? We think no. Why? Because the pandemic is not entirely over. There are a variety of organizations that are still mandating masks in various circumstances. Regardless of one’s opinion on the efficacy and safety of the vaccine, it’s hard to argue with evidence that those who remain unvaccinated are at greater risk for acquiring and spreading COVID.
Again, this doesn’t keep the union from demanding to bargain employer-imposed rules. And those rules could include mitigation. What about, for example, those who have had COVID but choose not to get vaccinated? And how long will the mask mandate continue? Could it be lifted, for example, if community spread was reduced to “X” level? These certainly are all legitimate issues to discuss with your employer.
Vaccination records. We’ve been presented with a lot of questions regarding employer demands to produce vaccination records as a precondition to lifting the mask mandate. Some have claimed that these requests violate HIPAA or are otherwise unlawful. Let’s address those objections.
First, HIPAA has nothing to do with this subject. Here, as is often the case, there’s massive confusion about the scope of HIPAA. HIPAA only governs medical providers and health care facilities and their insurers. It is not workplace law. Our only caveat here is that, to the extent your employer is self-insured as is the case with some government agencies, then HIPAA may apply. Nevertheless, the applicable law governing medical records in the workplace is the ADA.
So how does the ADA govern this situation? The ADA does contain specific requirements regulating employer requests for and storage of medical records. The ADA also governs whether or under what circumstances vaccinations can be mandated. We’ve discussed these guidelines in our March blog on this subject.
The EEOC is not the final voice on the ADA but its views are given heavy weight by courts in any legal challenges. The EEOC believes an employer vaccine mandate is not inherently unlawful, although some accommodation for religious or health reasons might need to be extended. (Note, though, that this issue is separate and apart from the question of whether the mandate needs to be negotiated in a union workplace.)
The EEOC has also addressed vaccination records. The EEOC has concluded that employers may permissibly request proof of vaccination. The EEOC has also concluded that such vaccination documents are “medical records” that must be securely and separately stored as confidential medical records.
Do you have a right to know if your coworkers are vaccinated? Probably not. The nature of the vaccination document being a confidential medical record likely prohibits employers from sharing this information with others, whether it be coworkers or other third parties.
Role of CDC recommendations. There seems to be some confusion about the impact of CDC recommendations in the L&I announcement. Some interpreted the L&I update as a mandate that was an extension of an earlier mandate issued by the federal CDC. That interpretation is incorrect.
First, the federal CDC has not issued any vaccine or mask mandate. They have only issued recommendations and guidelines for best practices that state and local governments are free to accept or reject. Furthermore, the CDC has no specific jurisdiction over workplaces. And that is particularly true as to safety standards for public sector workplaces which are generally determined by state governments, not the federal government.
Second, as we have noted already, the L&I update what not itself a legal “mandate.” It appears instead what has occurred was that both the CDC and L&I recommendations were presented in a tone that suggested to the reader that they were mandatory. Your public employers have run with those recommendations and presented them in a way that suggests they are merely passing on mandates imposed on them. That’s a clever way of citing to a third party to disguise that they are they ones imposing the mandate. As we’ve indicated, your right to bargain aspects of this are retained and you ought to consider your best approach to addressing these issues in bargaining.
Conclusion. As you can see, there’s quite a bit of nuance involved in this subject. And the initial questions that some were posing about the L&I guidance were generally not the most important questions at all. Labor organizations still retain their collective bargaining rights and they should consider how to use those rights in this situation.
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