Pub. 3 2021 issue 1

9 or more serious conduct. While workers’ compensation laws may apply to shield employers from tort claims (i.e., personal- injury type claims) brought by employees who sustain physical injuries as a result of an employer-sponsored COVID-19 vaccine, these same laws may not preclude tort claims against third party entities, such as the vaccine manufacturer. 4. National Labor Relations Board (NLRB) Finally, there are labor considerations for both union and nonunion employers in mandating a COVID-19 vaccine. For union employers, requiring a COVID-19 vaccine may be considered a mandatory subject of bargaining, triggering an employer’s duty to bargain prior to implementing such a requirement. Employers should review any existing labor agreements for language which precludes or permits such a mandatory vaccination scheme. Second, nonunion employers must also be mindful of how implementing a vaccine requirement could implicate Section 7 of the National Labor Relations Act (NLRA), which provides employees the right to engage in “concerted activities” for the purpose of “mutual aid and protection.” Practically speaking, employees who join together to speak out for or against a mandatory vaccine requirement, who collectively create outside social media postings or other organized interoffice communications regarding the requirement, or simply discuss the employer-imposed requirement would be protected by federal labor law and, generally, cannot be subject to discipline or termination as a result of this conduct. Notwithstanding, even if employees band together Abbey Moland is an attorney at McGrath North and counsels Fortune 500, midsize and startup businesses, colleges and universities, and nonprofits on a wide range of labor and employment matters. Her practice spans across the country in areas including wage and hour compliance, workforce reductions, employee leaves of absence, FMLA and disability accommodations, workplace investigations, hiring practices, disciplinary actions and employee terminations, immigration and workforce authorization, management and employee training on workplace issues, policy formation, union organization, noncompete issues, OSHA investigations and employee class-action litigation. She is also experienced in defending employment-related litigation and providing day-to-day counseling to avoid unlawful employment practices. Moland can be reached at (402) 633-9566 or amoland@mcgrathnorth.com. in concerted activity under the NLRA and cannot be disciplined for that concerted activity, they could still be disciplined for refusing to take the vaccine or even permanently replaced if they choose to go out on a work stoppage. While the current legal landscape suggests employers, especially those in certain high-essential industries, may be able to require employees to obtain a COVID-19 vaccine, the legal landscape changes almost daily, and there are many open questions, potential public relations pitfalls, and employee morale issues with doing so. Until there is more guidance from the federal, state, and local level on this topic, and more widespread use and availability of the vaccine beyond the healthcare industry, employers may want to consider promoting rather than requiring a vaccine as a condition of employment just as they would a flu vaccine. 3