Unionized Hospital Must Bargain Over Effects of Communicable Disease Policy

In Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board recently found that a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a communicable disease policy that required nurses who refused to be immunized against influenza to wear a mask.
The Hospital unilaterally adopted its flu prevention policy without affording the nurse’s union an opportunity to bargain concerning the decision to implement the policy and its effects.
The Hospital contended that it did not have to bargain with the union over the policy because the policy went to the Hospital’s “core purpose” and was exempt from mandatory bargaining under Peerless Publications, 283 NLRB 334 (1987).
The employer operates an acute care hospital, with approximately 600 registered nurses among its approximately 5,000 employees.  The Hospital amended its “Fitness For Duty” policy to require its entire workforce to be immunized against the flu. Faced with decisions by an arbitrator and a court that it could not require all of its employees to be immunized, the Hospital notified the union that it intended to require non-immunized nurses either to wear a protective facemask or take antiviral medication.
In finding that the “core purpose” exception did not apply, the NLRB distinguished Peerless Publications, which it said “was decided within the unique context of the newspaper industry and is of limited applicability outside of the narrow factual situation presented in that case.” In Peerless, the Board allowed a newspaper to adopt a code of ethics for employees without engaging in mandatory bargaining because the “subject matter” of the rule went to “the protection of the core purposes of the enterprise” (i.e., editorial integrity of a newspaper).
However, the Board distinguished the hospital’s flu-prevention policy from the newspaper’s code of ethics at issue in Peerless because the National Labor Relations Act “does not establish a narrower duty to bargain for health care employers.” The NLRB also commented on the absence of any evidence indicating that “collective bargaining – which inevitably implicates how, when, and by whom patients are cared for – has interfered with the core purposes of hospitals.”  Thus, the Hospital could not use the “core purpose” analysis inPeerless to avoid its duty to bargain.
The case was remanded back to the Administrative Law Judge who might still accept the Hospital’s remaining defenses to its obligation to bargain.  However, even if the ALJ agrees that the Hospital was not required to bargain the decision to implement the flu-prevention policies, it is likely that the ALJ find that the hospital was required to bargain the effects of such a rule on non-immunized nurses.
Unionized and non-unionized facilities should monitor the latest state and federal prevention and safety guidelines each flu season and remain flexible in their communicable disease policies based on the latest scientific directives on effective prevention and isolation procedures. At different stages of a pandemic, developing and changing guidelines from federal and state authorities might provide a healthcare facility with the legal authority to impose such a “mask or antiviral” requirement on non-immunized staff.
Unionized healthcare institutions must be careful to balance their legitimate concerns about communicable disease management and the Board’s recent holding in Virginia Mason Hospital.

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