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The health and safety protocols for the 2021 MLB season were unveiled on Tuesday, and much of the focus was on the lack of expanded postseason or universal DH, since those impact the shape of the season itself. What caught my eye, though, was that MLB would not mandate coronavirus vaccinations for players, and instead, the league and the union would strongly encourage players to get vaccinated. That seems like a policy that doesn’t go quite far enough, no?
It might be about as far as the two sides can get with the limited time frame they were working with to get the season’s protocols in order, though. MLB cannot force players to be vaccinated. Well, scratch that: MLB can force players to be vaccinated, but then they will face legal repercussions for enacting that kind of policy on their own. More specifically, they could subject themselves to an unfair labor practice claim by doing so, according to a labor and employment lawyer, Thomas Lenz, whom the Los Angeles Times spoke to back in November.
The Times and Lenz did not go into detail as to why that would open MLB up to such a claim, but that’s fine, it gave me something to dig up yesterday to write about for you today. As you can imagine, there is nothing in the current collective bargaining agreement about vaccines and the need to take them. Sure, the flu epidemic of a century ago and plenty of other diseases ravaged the country during MLB’s life, but the CBA has only existed for the last half-century and change. This is kind of a first-time thing here, with coronavirus, and “should we mandate vaccinations?” was never a top-of-mind thing while Marvin Miller and Co. were fighting to create free agency.
Since it is not included in the current CBA, and mandating vaccinations would become a condition of employment, it becomes a mandatory subject of bargaining. So, if MLB were to just unilaterally decide that vaccinations are required, they would subject themselves to an unfair labor practice, since they were forcing a decision on the players which should have been bargained between the two sides.
In turn, this also means that the two sides would not have been opening up the CBA as a whole — like with what would have happened had the players decided to counter MLB’s proposals for an expanded postseason or a shortened season — had they decided to enter bargaining for vaccination protocols: the CBA, as written, does not include anything about vaccinations being mandatory or not. It does include information on postseason revenues and the length of the season, though, so attempts to change something that already exists opens up a settled issued as bargainable once more. You can’t reopen something that’s never been opened, so vaccines would have been safe for the two sides to discuss, from a CBA perspective.
So… why didn’t the league and PA enter bargaining on vaccinations, then? While I don’t have firsthand knowledge of this specific situation, generally speaking, it’s just not common practice, for one: there are unions out there negotiating over plenty of pandemic safety protocols, like the Players Association has with MLB, but mandatory vaccinations are another step entirely.
The main reason for this might be that making vaccinations a condition of employment means that not getting a vaccine becomes a fireable offense. This can be hard enough to sort through in the “real” world, but what does a fireable offense mean in MLB, other than creating a huge mess to be sorted through just a couple of weeks before spring training begins? Would a player still be owed their full salary if they refused to get a vaccine and were let go, or would there have to be some kind of carve out, so, I don’t know, a player could not intentionally avoid vaccination in order to get away from a team they didn’t want to be on anymore, while still getting paid? Or, on the other side, would teams fight to make sure that future salaries were not owed to players who were let go due to the vaccination mandate, so that they themselves could itchy trigger finger themselves away from some deals they want to get out from under, and then claim they were just following the letter of the agreed-upon law? You know, like teams do for basically anything else they can get away with doing.
Exceptions would have to be negotiated as well, because not everyone can get a vaccine for coronavirus or any number of maladies due to allergies, and they require herd immunity to avoid contraction of something like COVID-19. That’s an obviously acceptable exemption, but considering the existence of the anti-vaccination crowd and the excuses they use for not wanting to get vaccines — I’m remembering the anti-vaccination crowd in Maine recently trying to get an exemption passed under the guise of “public school for all,” since the current vaccine mandate meant unvaccinated children without a legitimate exemption reason could not attend public school until they were vaccinated — other exemptions would potentially be argued for, legitimate or ridiculous or not. And again, we’re a couple of weeks out from spring training: there just isn’t time to sort all of this out, given the pace that negotiations tend to operate at.
None of this is the same as defending the state of things, by the way, so much as “this is why things might be the way they are.” I’m a bit torn, myself: on the one hand, I see the labor law side of things, but on the other, I also see an opportunity to show off the effectiveness of the vaccines to the general public they’re supposed to be entertaining by putting on a season mid-pandemic. On a third hand that makes me realize I should have used a different rhetorical device for this, athletes jumping the line for vaccinations remains an infuriating thought at a time when plenty of parents and in-laws, like my own, remain unvaccinated at this stage, and not by choice. So, yes, it’s all a mess. Of labor law, of ethics, of personal beliefs. Spring training is right around the corner, protocols were already well behind schedule, bargaining vaccinations would have been a tremendous lift for both sides… and here we are. An unsatisfactory but unavoidable ending to the story, maybe, which seems pretty fitting, really.