With judicial review underway on the Biden administration’s vaccination mandate for businesses with 100 or more employees, leading employers in the tri-county area are waiting and wondering.
On Nov. 4, the U.S. Occupational Safety and Health Administration (OSHA) announced a timetable for such companies to have their employees either get vaccinated against COVID-19 or, in the alternative, undergo weekly testing and wear a face mask.
By Dec. 5, OSHA said, affected employers must have determined each employee’s vaccination status and developed a policy for vaccination and testing. Each policy was expected to address how employees would prove they’ve been vaccinated, explain how employees could request a medical or religious exemption, what actions might be taken against employees who refuse to follow directives and more.
The mandate also told employers to provide up to four hours of paid leave per injection and said companies could not require an employee to use paid time off or sick leave to satisfy the obligation. Businesses also had to provide an employee with recovery time due to any side effects.
The deadline for employees to be fully vaccinated or submit to weekly testing was Jan. 4. To meet that deadline, employees would have to get inoculated as early as the first week of December.
But now, everything is up in the air.
With consolidated legal challenges to the mandate before a federal appeals court in Cincinnati and possibly headed to the U.S. Supreme Court, employers can’t be sure what, if anything, they’ll be required to do as they head into 2022.
That’s because the Sixth U.S. Circuit Court of Appeals has so far refused to lift a stay from another appeals court that blocked OSHA from enforcing its mandate.
“OSHA has suspended activities related to the implementation and enforcement of the ETS (Emergency Temporary Standard) pending future developments in the litigation,” the agency said on Nov. 12.
S. McKinley Gray, leader of Ward and Smith’s Labor and Employment Practice Group, is encouraging employers “to at least take initial steps to move towards being able to be in compliance with the ETS and assume that the courts will uphold it.
“What we are advising clients is at a minimum, at least obtain the vaccination status of your employees so that you know who’s vaccinated and who is not. If the ETS gets validated then you at least will be ahead of the game, and it’ll be pretty easy to get the policies put in place,” Gray said.
Private businesses and local and state governments in North Carolina with at least 100 employees are covered by OSHA’s now-suspended rules. But employees who work remotely or exclusively outdoors are not.
Gray said employers affected by OSHA’s mandate mostly fall into one of two mindsets: those who want to maximize compliance and those who, for whatever reason, do not.
“Others, they’re not anti-vaccine,” Gray said. “However, they realize that they could lose a certain percentage of their workforce, say 10%, if they mandate the vaccine … some of these employers are already under a labor shortage. They really can’t afford to offer the same services and goods that they typically offer to customers if they lose 10% of their workforce.”
Still, other employers, anxious to see more associates return to the office, might think that moving ahead with compulsory vaccination and testing is in their best interest.
North Carolina’s labor commissioner, Josh Dobson, has encouraged his employees to get vaccinated and has personally done so. But on Nov. 10, two days before OSHA’s statement of suspension, Dobson announced that his department would not adopt or enforce the ETS until lawsuits challenging it were resolved.
“Our compliance officers should be spending their time working with employers to prevent injuries, illnesses and fatalities at construction sites and manufacturing facilities rather than knocking on doors to check an employer’s vaccine records,” Dobson had said earlier.
Although OSHA’s mandate remains in limbo, employers are still bound by the agency’s General Duty Clause to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to workers. Violations are subject to fines.
OSHA’s vaccination mandate is serious business, Ward and Smith said.
Despite the uncertainty of knowing when the mandate might again take effect, “It is premature for any employer presumptively subject to the ETS to treat the publicized employer obligations as inconsequential,” the firm said on its website.