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November 05, 2021
Employers ponder next steps as they pore over OSHA vax rule
By Tammy Binford

The long-awaited rule requiring some 84 million U.S. workers to be vaccinated against COVID-19 provides employers with many answers, but the rule’s future remains clouded, as the possibility of litigation looms.

The U.S. Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) was released November 4, nearly 2 months after President Joe Biden announced the administration’s intention to mandate that employers with at least 100 employees require their workers to be vaccinated or submit to testing for the virus at least weekly.

The rule requires employees of covered employers to be fully vaccinated by January 4, 2022. It requires employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to choose to either get vaccinated or undergo weekly testing. If an employer allows the testing option, any employee choosing testing over vaccination must wear a face covering at work.

The ETS also requires covered employers to pay employees for the time it takes to get vaccinated and, if needed, for time to recover from any side effects.

A fact sheet from the White House also notes that while the testing requirement for unvaccinated workers will begin after January 4, employers must comply with other requirements, such as providing paid time for employees to get vaccinated and masking for unvaccinated workers, by December 5.

Advice for employers

Martin J. Regimbal, an attorney with The Kullman Firm in Columbus, Mississippi, advises employers to carefully read the ETS to determine how to count employees for purposes of the 100-employee threshold. The regulation requires employers to count all employees—full time, part time, remote, etc.—when determining coverage.

But not all employees have to comply, as the rule exempts “workers who do not report to a workplace where other individuals are present or who telework from home.” Also, workers who perform their duties exclusively outside can be exempted. Regimbal points out employees who work in the office at least part time must comply with the vaccination or testing requirements.

OSHA is providing covered employers with guidance on compliance by issuing a summary of the rule, a frequently asked questions (FAQs) document, sample policies, and other materials.

Jeffrey S. Beck, an attorney with Faegre Drinker in Indianapolis, Indiana, says employers need to immediately begin developing policies and programs to put them in compliance. Also, he says they need to stay up to date because OSHA “will almost certainly continue to update” its guidance over the next few weeks.

Nita Beecher, an attorney with FortneyScott in Washington, D.C., says employers that aren’t federal contractors should determine who is vaccinated and figure out what steps they need to take to be in compliance by January 4.

Employers that are federal contractors are covered under the terms of an executive order that went into effect on September 9. The order requires employers to make sure their employees are vaccinated and doesn’t allow for a testing option.

Beecher says the ETS doesn’t apply to federal contractor workplaces covered by the executive order, but contractors need to determine if any of their sites not covered by the executive order are covered by the ETS.

Employers also need to remember that the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 exempt certain individuals from vaccination requirements, as employers can’t discriminate against employees or applicants based on a disability or sincerely held religious beliefs.

Because some people may have medical conditions precluding vaccination and others have religious beliefs prohibiting the shots, employers must explore whether they can accommodate those individuals.

Litigation threat

While many employers welcome action to require vaccinations, the ETS faces challenges from opponents of mandatory shots, testing, or face coverings. State attorneys general have already filed lawsuits against some mandates, Beecher says.

Beck says legal challenges “will likely focus in part on OSHA’s authority to issue the standard, including whether a ‘grave danger’ exists to allow [the agency] to issue such a standard, whether the standard is necessary, and whether it preempts state and local law.”

A few states have prohibited employers from requiring vaccination. “This is a complicated issue and potentially a legal minefield,” Regimbal says. “Employers in such states should seek out advice from legal counsel.”

Beck says employers in those states should develop and be prepared to issue and implement programs that comply with the ETS. “While certain states will likely pursue challenges and injunctions, such issues will not be decided for some time.”

In a briefing before the ETS was released, the administration attempted to head off legal arguments against the rule by saying the Occupational Safety and Health Act of 1970 “gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.”

The briefing also addressed how the administration maintains that the ETS “preempts states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan.”

Regimbal says a footnote in the ETS and the FAQs says the ETS doesn’t apply to state and local government employers in states without state plans because state and local government employers and employees are exempt from OSHA coverage.

“However, in states with OSHA-approved state plans, those states must adopt requirements at least as effective as those in the ETS,” Regimbal notes. “It is expected some such states may seek to challenge the ETS in the courts.”


Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR® Web and print publications.

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