Leading Local Labor Lawyers Weigh in on Ever-Shifting Situation

Property owners are starting to demand mandatory vaccination as a requirement to work on sites. In response, union attorneys and business managers are negotiating to ensure union members have alternatives such as testing and masking. With general contractors trying to push the cost onto subcontractors, union attorneys are also clarifying who will be responsible for the cost and record-keeping requirements of testing.

“I represent all workers and do not get into their beliefs, religious or personal, regarding vaccination,” said Rick Werner, president and business manager of Sheet Metal Workers Local 104.

Werner said he started to see jobs for which owners want workers to be vaccinated, plus two weeks, beginning August 1. When a Local 104 member turns down a job because it requires vaccination, that will not count against them.

The National Labor Relations Board (NLRB) has not yet ruled whether a union employer has a duty to bargain about mandatory vaccination for COVID-19, said Zoe Palitz, a partner with Altshuler Berzon LLP. Altshuler Berzon is a San Francisco-based law firm that represents sheet metal workers, bricklayers, and sprinkler fitters in San Francisco.

“A union-signatory contractor could have an obligation to engage in decisional bargaining with the union before requiring vaccination as a condition of employment,” Palitz said. “The contractor could also be required to engage in effects bargaining.”

Effects bargaining occurs when a decision has an effect on working conditions. With effects bargaining, negotiations could center on whether the vaccine is mandatory and how an employer would roll out that requirement.

Gregg Adam is a partner in Messing, Adam, and Jasmine LLP, a San Francisco- and Sacramento-based law firm that represents unions made up of city managers and supervisors. Adam said he, too, is seeing a great deal of discussion about vaccination requirements.

“The public health officers in San Francisco County have been among the most aggressive with proactive measures,” Adam said. “The city is requiring that most workers be vaccinated 10 weeks after the U.S. Food and Drug Administration’s full approval of the main three vaccines, although that trigger requirement for mandatory vaccination seems a long way off.”

According to the U.S. Department of Health and Human Services, it is not a Health Insurance Portability and Accountability Act (HIPAA) violation if an employer asks an employee to present proof of vaccination. Union members remain concerned about the confidentiality of their vaccination cards.

Adam said that he’s also working to ensure that employers keep vaccination cards or self-attest forms secure and available only to entities that have an absolute medical need to see that information, and no one else. (A self-attest form is a form that workers sign to certify they got vaccinated.)

Susan K. Garea is a labor attorney and shareholder in Beeson, Tayer, and Bodine, a Sacramento- and Oakland-based law firm that represents several Teamsters locals. Garea said she has seen different requirements for jobs that fluctuate based on the place of work and other factors.

“It also makes a difference as to whether the jobsite is indoors or outdoors,” Garea said. “When a building is missing walls and roofs, it tends to be classified as open-air. At this point, outside rules apply.”

Garea wants to shift the conversation to what employers are doing to make workplaces safe.

“The primary interest of the union is to fight for employee safety at the workplace,” she said. “Yet the situation on the ground is evolving, especially with the Delta variant. What we want to do is make sure there is a middle ground that respects the rights of union members for whom vaccination may not be an option.”