The legal environment for vaccine requirements related to the pandemic continues to evolve, this time in California: the state’s Public Employment Relations Commission rule The University of California system has the right to mandatory flu vaccination for all students and employees last fall without first consulting its employee union. The system is concerned about “twindemic”, that is, flu season and COVID-19, and tries to alleviate it before the COVID-19 vaccine is available.
The board of directors wrote in its decision: “The implementation of the university’s influenza vaccination policy is a direct response to the potential convergence of the COVID-19 global pandemic and the influenza virus outbreak, which has led to catastrophic consequences and unnecessary loss of life.” “This potential disaster affects not only university employees, but also students and the public who may need to use university hospitals. In this unprecedented situation, requiring universities to negotiate a decision to vaccinate influenza would deprive them of decision-making on the public. Rights.” Health policy during a pandemic. “
At the same time, the board ruled that the University of California system passed the authorization before negotiating with the union on the impact of the decision, thereby violating state labor laws. Such effects include the consequences of non-compliance.
The UC system regards a partially favorable decision of the board of directors as a victory.
System spokesperson Heather Harper said: “We are pleased with the decision of the Public Employment Relations Board, which recognizes that the University of California’s influenza vaccine authorization is beyond the scope of negotiations.” “As pointed out by PERB, COVID-19 and influenza The unprecedented situation of the potential integration of viruses has created major risks that need to be addressed by this policy.”
Harper stated that the university will continue to work with its union partners through a negotiation process to resolve the policy adoption issues cited by PERB.
Last summer, fearing that the upcoming annual flu season would push university hospitals that were already caring for COVID-19 patients to the edge, Janet Napolitano, the then president of the system, signed a copy. Executive order Regarding the authorization of the flu vaccine. The initial deadline for vaccination is November 1, 2020. The order was later extended to November 16, 2020, listing multiple medical exemptions, such as severe egg allergies, and allowing applications for disability and religious exemptions.
Three university employee unions-Teamsters, the U.S. Federation of State, County, and Municipal Employees, and U.S. University Professional Technical Employees, Communications Workers, Representing Healthcare Professionals, Research Support Professionals, and Civilians, and other non-faculty groups -Soon there was a demand for bargaining over the authorization and its impact.
The university eventually stated that it would not bargain over the authorization decision, but would negotiate its impact. For example, the university and UPTE held four meetings, and the union sought time off for employees to vaccinate, pay for vaccinations, where employees can be vaccinated, the consequences of those who refuse to be vaccinated, deadlines and exemptions for vaccinations. The union and the university agreed to be vaccinated on time. The university provided the union with a list of locations for vaccinations and encouraged workers to use their health insurance. But that’s it.
The union later filed a claim for unfair labor practices against the university. Teamsters requested an injunction for this task, but was refused.
In reviewing these cases, the committee stated that the main issue is whether the authorization of the flu vaccine falls within the scope of union representatives. The committee quoted the state labor law as saying that projects that fall into this range involve employment relationships and may be resolved through collective bargaining, without compromising the administrative privileges necessary for the university’s mission.
The board found that although vaccine authorizations involve employment relationships, they are unlikely to benefit or be resolved through collective bargaining. To illustrate the latter point, the board cited a PERB decision in 1989 regarding the indoor smoking ban in Riverside Schools, in which the board found that “collective bargaining between the school district and employee organizations is not an appropriate means to deal with this public health hazard.” In addition, PERB has repeatedly found that public health and safety can outweigh the benefits of collective bargaining.
However, regarding the impact of authorization, the board stated that “before implementing non-negotiable changes, all parties must first negotiate changes that affect the scope of the representatives.”
The board of directors admitted that the university refused to bargain over the consequences of not being vaccinated and gave conflicting information about these consequences, from not being allowed to campus to taking unpaid leave. The board stated that because the policy that may lead to disciplinary action is directly related to remuneration and benefits, the employer “total refusal to negotiate on matters within the scope of the representative itself violates the obligation to negotiate in good faith.” The board stated that any remedial measures involve concessions. The affected employees recovered, although there is almost no evidence that anyone has suffered a loss under this policy.
The flu vaccine order refers to the 2020-21 flu season, but now that the COVID-19 vaccine is available, the university has order All students and employees will be vaccinated against the latter in the next academic year.
PERB’s decision set a clear precedent for the university to insist on the right to vaccinate all employees.
William Herbert, executive director of the National Research Center for Higher Education and Vocational Collective Bargaining at Hunter College, City University of New York, said that the California Board of Directors is “probably” applying the same reasoning to future cases involving California public sector COVID-19 vaccination tasks. Negotiable. Herbert said that if state labor relations agencies elsewhere consider similar cases, the decision “will definitely be relevant.”
Unions are one way states outside of California may be required to weigh vaccine regulations. The court is another matter.Last week, the Federal Court of Appeals Double sided In the case brought by the students, they strongly opposed Indiana University, arguing that the COVID-19 vaccine authorization violated their due process rights.
In this case, Judge Frank Eastbrook wrote in writing for a panel of three judges: “People who do not want to be vaccinated may go elsewhere. Many universities require SARS-CoV-2 vaccine, but many others University does not need. The plaintiff has sufficient educational opportunities.”
Todd Zywicki, Professor of Law, George Mason University Prosecute That institution In its mask or vaccination policy. Zywicki, who was not vaccinated, said that he had been infected with COVID-19 before and therefore had natural antibodies against the virus. Although federal health authorities urge people who are already infected to get vaccinated, Zywicki said the vaccine will not bring him additional benefits. He also said that under George Mason’s “mandatory” and “illegal” policies, he should not be required to wear a mask.
Harper of the University of California System said that vaccination against COVID-19 and influenza remains “a critical step to protect the health and safety of the University of California community and the general public.” Therefore, the system’s COVID-19 vaccine authorization this fall is “critical to the resumption of face-to-face activities”.