Tuesday, January 27, 2026
Page 4
Court of Appeal:
Cal State Must Collectively Bargain Over Vaccine Changes
Opinion Says Although University Is Obligated to Meet With Faculty Over Easing of General Mandates, No Violation Occurred Where School Offered to Informally Discuss Before Implementing New Policy
By Kimber Cooley, associate editor
A change to a university’s policy, reducing the list of required vaccines for students as of October 2023 to only mandate inoculation against hepatitis B, triggers the school’s obligations to collectively bargain with a faculty group over the “reasonably foreseeable effects” of the implementation of the new standard on staff, Div. Three of this district’s Court of Appeal held yesterday.
However, the court set aside an administrative ruling that demanded that the California State University (“CSU”) reimburse the faculty group for “wasted or diverted resources(if any) and/or other harm resulting from” the university system’s “violations,” finding that no such breach occurred where the staff challenged the action before it was implemented and after the school offered to informally meet to discuss proposed changes.
Yesterday’s decision, written by Justice Mark K. Hanasono and joined in by Acting Presiding Justice Anne H. Egerton and Justice Rashida A. Adams, leaves the amended list in place during the forthcoming bargaining process and rejects an invitation to follow Public Employment Relations Board (“PERB”) decisions finding that an employer may only satisfy its duty to seek clarification over its obligations during formal proceedings, declaring:
“[A]n employer may satisfy its duty to seek clarification either ‘at the bargaining table’—that is, by formally meeting and conferring—or through an informal exchange between parties.”
At issue is the Higher Education Employer-Employee Relations Act (“HEERA”), found at Government Code §3569 et seq., which governs labor relations between public institutions of higher learning and their employees.
Under the statutory scheme, CSU has a duty to bargain with the California Faculty Association (“CFA”) over matters within the “scope of representation,” which is defined as wages, hours, and other conditions of employment, as well as over policy changes that have reasonably foreseeable “effects” on such issues.
In February 2023, CSU voted to ease its vaccine requirements for students under the age of 19. Under the new policy, previously mandated inoculations—including those for measles, mumps, tetanus, and meningococcal disease—were declared to be “recommended” but not required.
CFA learned of the change a few weeks later and demanded to bargain over the change in policy. CSU responded by saying that it did not believe the amendment fell under its HEERA obligations because it applied only to students and not to staff, but the university said that it was willing to meet to allow the group “to explain why you believe there are impacts within your scope of representation.”
After CFA declined to meet informally, the policy went into effect that fall.
Unfair Practice
The faculty group filed an unfair practice charge with PERB in March 2023, asserting that CSU “failed to bargain in good faith” over the decision to eliminate student vaccine requirements. That August, Administrative Law Judge Camille Binon tentatively ruled that policy had a reasonable effect on the staff members’ conditions of employment because “employees may suffer exposure to infectious diseases.”
After CSU filed a statement of exceptions to the proposed decision, PERB issued a final decision in August 2024. The agency acknowledged that it was not clear how significant the effects of the decision would be in light of the
high percentage of CSU students who hail from California public schools—which are subjected to statewide requirements mandating the eliminated vaccines—but that the policy change “had the reasonably foreseeable result of reducing community immunity.”
PERB found that the school had violated HEERA but declined to direct the university system to rescind the 2023 policy during bargaining. However, it directed CSU to make CFA whole for harms resulting from its breach.
CSU filed a petition for writ of review in September 2024.
Effects Bargaining
Hanasono said that “substantial evidence supports PERB’s finding that the 2023 policy had reasonably foreseeable impacts on [certain] faculty members, thus requiring effects bargaining” but opined that PERB wrongly determined that CSU “refused to bargain.”
The school argued that it bore no duty to bargain because the only impacts CFA identified are those affecting immunocompromised faculty members who cannot protect themselves by receiving the vaccines at issue, and the law already requires them to make “reasonable accommodation” to such employees. Rejecting this assertion, the jurist opined:
“Because we see no indication that the Legislature intended to allow employees to seek disability accommodations permitted by [the Fair Employment and Housing Act] and the [Americans With Disabilities Act] only through individual negotiations, to the exclusion of collective bargaining, we conclude that substantial evidence supports the PERB’s conclusion that the 2023 policy was a proper subject of effects bargaining.”
No Refusal
As to whether the school violated HEERA by refusing to bargain, Hanasono explained:
“If a proposal is outside the scope of representation and does not have negotiable effects, the employer may refuse to negotiate without committing an unfair practice….However, a party’s refusal to discuss a proposal based on an incorrect belief that the proposal concerns a matter outside of the scope of representation is a per se violation of the duty to bargain.”
He noted:
“Here, it is undisputed that CSU did not provide formal notice to CFA of the 2023 policy, but that CFA knew of the change at least by…nine days after the policy’s adoption….CSU’s failure to give formal notice therefore was not legally significant if, at the time CFA learned of the new policy, CSU had not yet begun implementing the policy and there was sufficient time for CFA to seek bargaining prior to implementation.”
Bargaining Table
Rejecting CFA’s conclusion that any discussion of effects had to occur “at the bargaining table,” the jurist remarked that “[n]othing in the HEERA’s requirement that parties meet and confer ‘on all matters within the scope of representation’…requires” a formal sit-down. He reasoned:
“[W]hile CSU advised CFA that it did not believe it was required to bargain over the effects of the 2023 policy, it did not refuse to bargain. Instead,…CSU offered…to meet to allow CFA to explain why it believed the policy had impacts within the scope of representation. This offer to meet and discuss whether the 2023 policy had bargainable effects satisfied the CSU’s duty to seek clarification of CFA’s demand.”
He wrote:
“[W]e set aside PERB’s finding that CSU violated HEERA and remand the matter for the parties to engage in effects bargaining.”
The case is Trustees of the California State University v. Public Employment Relations Board (California Faculty Association), B340818.
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