Labor Relations Requirements for Mandatory Vaccinations

 

John M. Collins, Esquire

Collins & Weinberg

47 Memorial Drive

Shrewsbury, MA 01545

(508) 842‑2935

(508) 842‑3703 ‑ Fax

MPIShrews@aol.com

 

In the absence of any federal or state legislation mandating the inoculation of police officers, chiefs in states with collective bargaining are required to satisfy several labor relations requirements before implementing a rule that some or all members of their department be inoculated. Even where new legislation is enacted, states with collective bargaining usually require a certain level of union consultation, where time allows, except in emergencies.

 

Historical Perspective

 

Since colonial times, states have enacted laws aimed at preventing the spread of communicable diseases.[1] Public health officials were often given authority to care for sick persons by taking over peoples homes and requiring certain citizens to assist in the disease control effort. The freedom of movement of infected individuals was constrained and it was not uncommon to turn back persons at a state border if they appeared to be contagious. In most cases, all this was done without the involvement of the police. (Organized departments in all but the larger cities are principally a 20^th century phenomenon.) It is fair to assume that in the future, the police will have a very great involvement in the enforcement of any public health regulation enforcement efforts.

 

Although certain infectious diseases have re-emerged around the world (principally in India, Africa, Russia and the United States), until the 9/11 terrorist threats, the mandatory inoculation of even the military has not been a major consideration.[2]

 

The last major smallpox epidemic for most American cities occurred over 100 years ago. Bostons, for example, lasted from 1901-1903, and involved 3500 cases resulting in 400 deaths.[3] When the Boston health board passed a regulation ordering all citizens be vaccinated, the populace readily complied. Presumably this included the members of the Boston Police Department.

 

Limited legal challenges were raised to the public health response to the smallpox epidemic. One case that made its way to the U.S. Supreme Court upheld the constitutionality of Cambridges mandatory public inoculation regulation.[4] All this predated todays emphasis on individual rights and liberties. Therefore, how a court would treat a challenge now, especially in the absence of an outbreak, is speculative. However, there would appear to be a greater likelihood of upholding a law limited to public health and safety workers.

 

Bargaining Requirements

 

While there are variations in state collective bargaining laws, the general rule is that matters involving wages, hours and conditions of employment are mandatory subjects of bargaining. In that case, management must provide the union with notice of any proposed new rule or change in working condition that involves or impacts a mandatory subject of bargaining. If the union makes a timely request, management is then required to engage in good faith negotiations until reaching either agreement or impasse.

 

The foregoing assumes that the chief proposes implementing a new rule outside the regular contract negotiation process. It could be much more difficult and time-consuming were the issue presented as a proposal at regular contract negotiations. The latter route is also likely to involve some concession on managements part in order to induce a voluntary agreement by the union. Similarly, if some impasse resolution procedure is available under applicable state law, management is likely to face some pressure from the mediator or arbitrator to modify or rescind its proposal or to offer some economic or other concessions. All this leads to the conclusion that a mandatory vaccination rule should be proposed only on a mid-term bargaining basis.

 

Statutory Requirement

 

In the event the federal, state or local government enacts a law requiring police officers (and presumably other public safety personnel) to be inoculated, the nature of negotiations required will change. The general rule is that where a law enacted by a third party requires action by unionized employees, and the action involves or impacts on a mandatory subject of bargaining, impact (as opposed to decisional) bargaining is required if the union makes a timely request. If a deadline is imposed by the law or regulation, good faith negotiations will continue until reaching agreement or impasse, but will not necessarily delay the implementation if the deadline is not flexible.

 

The purpose of mid-term negotiations is primarily to afford the union the opportunity to present questions and explore compromises or alternative ways of achieving managements legitimate objectives. Unions occasionally make financial proposals as a condition of securing their agreement. However, management is not required to make concessions so long as it negotiates in good faith. If no agreement is reached, and the parties are at impasse, management is free to implement its pre-impasse position.

 

Disease Outbreak

 

As a practical matter, rules are less likely to be strictly adhered to during emergencies. As a general rule of thumb in police departments, chiefs will not be held to certain provisions of their collective bargaining agreement if there is a pressing legitimate public safety reason for not doing so. For example, this might involve canceling time off and holding over officers during a hurricane, earthquake or wildfire situation.

 

There have not been many (if any) contagious disease epidemics in this country since the advent of widespread public safety unions. Therefore, labor relations decisions precisely on point are understandably missing. It is likely, however, that should a terrorist attack involving smallpox, for example, take place in a community, and the chief order all officers to be inoculated, such an order would withstand both a labor relations and a civil rights challenge.

 

Even if the chiefs action is later found to have been unlawful, the penalty is not likely to be severe (so long as no officer becomes ill or dies as a result of the mandated inoculation.) Typically, a states labor relations commission (or similar agency) would issue an order that management post a notice acknowledging its failure, promising not to do so again, and making whole any employees that suffered some economic harm. Since the order could not restore the employees to the condition in which they found themselves before managements improper action, it is unlikely that any economic component would be included in any such agency decision.

 

Recognizing this, a union might attempt to secure a court order enjoining the chief or employer from instituting the inoculation rule. In that case, the failure to issue a temporary restraining order and/or a preliminary injunction would render the case moot. Therefore, some initial restraint would not be unexpected. An exception would be where the order was issued in response to a biological attack, communicable disease outbreak or, perhaps, even legislation. In the absence of the foregoing, managements chances for success would be improved by a showing that all its bargaining obligations had been met. If it can show that the union had notice and opportunity to request bargaining and failed to do so (or did so and the parties reached impasse), a court would be left with only the constitutional part of the claim upon which to base its relief. Since the U.S. Supreme Court has upheld the mandatory inoculation of an entire citys population, it is unlikely that a trial judge would grant an injunction. This is, in part, because one of the elements of such relief is a likelihood of success on the merits at trial.

 

Sick or Injury Leave

 

Time spent being vaccinated is presumably work hours and covered by the Fair Labor Standards Act (FLSA). This is something that could be discussed with the union during negotiations over the proposed rule.

 

Should an officer suffer a reaction and become too ill (or contagious) to work, this obviously qualifies for sick leave. It would probably constitute a work-related illness or injury under most states workers compensation or injured on duty laws. Medical authorities should be consulted, but the possibility of spreading the smallpox disease (before the scar heals, for example) may mean that some officers should be relieved from duty (with sick leave pay) or reassigned.

 

While the chances are slim, reportedly up to two persons per million may die after being inoculated for smallpox. Any such death would appear to qualify for any available line of duty death benefits a state or other agency might offer.

 

Recommended Action

 

Waiting until the last minute rarely results in the best rules. Chiefs interested in implementing a mandatory inoculation rule even on a stand-by basis, should start early to engage the union in the entire process. Experience shows that when employees have a meaningful role in formulating policy, they are more likely to comply and even defend controversial rules.

 

An invitation to the union to participate in a committee to explore the whole issue of inoculations is a good start. The committees role should be specified and its mandate and timeline should be clear. Without relinquishing their management right to propose and implement rules, chiefs can gain a lot from such a labor-management committee.

 

Among the many issues confronting the study group will be the existence of any applicable laws or regulations, the types of contagious diseases for which vaccination is available, the need for inoculating some or all officers, how to handle medical side effects (workers comp/injured on duty, e.g.), and the timing of the vaccination program (now or after an attack or outbreak in the U.S. or in the state, e.g.).

 

Should legislation be enacted or an outbreak or attack occur before the committee finishes its work, the chief could still implement a new rule. All that is required is to give the union a reasonable amount of notice where circumstances permit, as discussed earlier.

 

In the event the committee completes its work and forwards a report with recommendations to the chief, the chief is then free to decide where and how to proceed. Simply because the union participated on the study committee, however, does not mean it necessarily waived its right to notice and the opportunity to request and engage in good faith negotiations once the chief decides to implement a new rule or a change in working conditions.

 

Once chiefs fulfill their bargaining obligations, they are free to implement the rule or delay doing so, as they see fit. Unless an unreasonably long period elapses or circumstances change in some material way between the promulgation and implementation of the rule, a chief may hold off actually requiring officers to be inoculated.

 

There does not appear to be any labor relations constraint on requiring only certain officers be vaccinated, so long as the chief has some good faith basis for the selection. (Obviously not just the unions negotiating team!)