42 JANUARY / FEBRUARY 2022 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Employee Protests Over Vaccine Mandates Be aware of the NLRA Many employers have been wrestling with vaccine mandates since President Joe Biden announced the federal COVID-19 Action Plan in September. Employers are facing backlash from employees in response to vaccination policies, including protests. A protest may be as simple as a letter written by a group of employees stating their concerns or objections to the employer’s policy, or may be handing out literature to coworkers, confronting management, picketing or even walking off the job. Employers must be wary of how they handle employee protests over vaccine policies so that they do not run afoul of the National Labor Relations Act. Federal Government Mandates As part of the Action Plan, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, requiring covered federal contractors and subcontractors to follow the COVID-19 safeguards published by the federal government’s Safer Federal Workforce Task Force. The Occupational Safety and Health Administration also issued an Emergency Temporary Standard requiring private employers with 100 or more employees to mandate that their employees are either fully vaccinated or tested for COVID-19 on a weekly basis and wear face coverings. The ETS, which provided for compliance deadlines in December and January, was approved by President Biden and subsequently released on Nov. 4. Numerous lawsuits were filed challenging the legality of the EO and ETS, including by Indiana’s attorney general. Stays were issued by federal courts, temporarily blocking implementation of the EO and ETS. The stay relating to the ETS was recently lifted, and that ruling is on an emergency appeal to the U.S. Supreme Court (as of the date this article was submitted for publication). In the meantime, OSHA announced that it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and it will not issue citations for noncompliance with the testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to comply with the ETS.1 Whether the EO and ETS will survive the legal challenges is unclear. In the meantime, some employers opted to move forward with implementing vaccine mandates or vaccine-or-test mandates, while others adopted a wait-and-see approach. Regardless, employers are facing protests by employees. Employers which implement vaccine policies are criticized for interfering with employees’ beliefs or medical decisions, while employers which do not implement a policy face criticism for not protecting their workforces. Protected Concerted Activity Employers may be surprised to know that those protests may be legally protected under the NLRA. Section 7 of the NLRA gives both union and nonunion employees the right to, among other activities, engage in “protected concerted activities” relating to wages, hours or other terms and conditions of employment.2 Protected activities include complaints, protests or other
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