With deadlines looming and in spite of legal challenges sprouting like weeds, large employers are busy implementing plans to comply with the new federal regulations that address the polarizing issue of compelling workers to get vaccinated for COVID-19.

On Nov. 4, the U.S. Department of Labor’s Occupational Safety and Health Administration announced new regulations for implementing and enforcing mandatory COVID vaccination policies for employers with 100 or more employees.

The so-called “emergency temporary standard” — or ETS — gives covered employers a choice.

“If a private employer with 100 plus employees does not want to impose an across-the-board vaccine mandate on its employees, it does not have to do so but can implement a testing and masking option under the ETS,” said Declan Leonard, a McLean employment law attorney who regularly advises companies and executives.

John Bredehoft, a Norfolk attorney who focuses primarily on employment law, said the testing issue could prove “particularly vexing” for employers.

“While the OSHA ETS does not require employers to pay for the cost of employee testing, the ETS documents make clear that there might be other laws that do require employers to pay,” he noted.

The ETS differs from the federal contractor mandate, which does not have an option to test instead of getting vaccinated.

“Virginia employers doing business with the federal government, of which there are many, need to know that they are subject to the federal contractor vaccine mandate still in effect and not the OSHA ETS,” Leonard said.

The ETS went into effect immediately upon its publication in the Federal Register on Nov. 5. It sets two key deadlines: Employers have until Dec. 5 to have written vaccination policies developed and implemented, and employers that choose to allow employees the option of forgoing vaccinations must commence weekly testing of unvaccinated employees by Jan. 4, 2022.

Broad scope

Leonard said that despite the ongoing legal challenges, businesses should be proactive in complying with the ETS.

“If the ETS is eventually reinstated, OSHA is not going to have much patience with employers who have not taken any action towards compliance,” he said. “Rather, I believe OSHA will pursue aggressive enforcement to make up for lost time.”

The new regulations were adopted by OSHA in accordance with a September directive from President Joe Biden. The agency added 29 C.F.R. §1910.501 for the purpose of establishing “minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues.”

Section 1910.501(b) defines covered employers as those with 100 or more employees, but 1910.501(b)(3) clarifies that the new rules do not apply to those employees who do not report to a workplace where others are present, who work from home, or who work “exclusively” outdoors.

It can be complicated to determine if a company employs 100 people. Bredehoft said he is still looking into how OSHA will make that determination as it relates to affiliates.

“We are still looking at the extent to which companies that are in some manner affiliated, but are not formal subsidiaries or parents, will be aggregated by OSHA when counting whether they have 100 employees,” he said.

Section 1910.501(d) lays out the two options for employers in terms of workplace vaccination policies. Section 1910.501(d)(1) states the general rule that an employer “must establish, implement, and enforce a written mandatory vaccination policy.” Section 1910.501(d)(2) spells out an exception for any employer that “establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19.”

Shifting work culture

Leonard said it is important to remember that the workforce is in the midst of what some call the “Great Reopening,” where employees are being brought back into the office after the longest period of working remotely in their careers.

“For so long during COVID, people worked almost exclusively from home, and OSHA’s role in protecting the physical workplace was not as relevant if there was not an actual physical workplace being used,” Leonard noted.

Bredehoft said that some employees may feel hesitation about working with colleagues who are unvaccinated.

“Given the emergence of highly-contagious variants — Delta will not be the last — there is a real question as to whether the presence of any unvaccinated employee in the workplace is appropriate,” he said.

Employers will need to provide a mechanism for both medical and religious exemptions from the federal mandate with the latter available for individuals with sincerely held religious objections. But Bredehoft noted that employers do not have to provide accommodations for employees if it creates “an undue burden.”

“In other words, look for a number of employees to get the message, ‘Your request for an exemption is granted. There is no reasonable accommodation. You’re fired,’” he said. “And that is perfectly legal,” Bredehoft said.

Another important consideration for Virginia employers are the Department of Labor and Industry COVID standards, which among other guidelines requires the wearing of masks in areas of “substantial” or “high” community transmission. As of Nov. 23, all but seven of Virginia’s cities and counties would require masks under those standards.

“The OSHA ‘vaccine only’ rule may not be as attractive if Virginia law requires even the vaccinated to wear masks,” Bredehoft said.

Legal challenges

Employers scrambling to achieve compliance are doing so in an atmosphere of uncertainty.

The publication of the ETS triggered a wave of federal lawsuits challenging OSHA’s statutory and constitutional authority to issue such wide-ranging regulations.

One court has already entered a ruling on the matter. Citing “cause to believe there are grave statutory and constitutional issues” with the OSHA mandate, on Nov. 6 a three-judge panel of the 5th U.S. Circuit Court of Appeals granted an emergency motion to stay enforcement of the ETS pending expedited appeal.

The emergency stay in BST Holdings v. OSHA was granted at the request of a number of employers and other stakeholders, including the states of Louisiana, Mississippi, South Carolina, Texas and Utah.

Michael J. Yelnosky, a professor at Roger Williams University School of Law in Rhode Island, said he understands why the OHSA vaccine mandate is getting pushback from both employers and employees.

“From the worker perspective, it’s ‘Keep your laws off our bodies; this is a decision we should make individually,’ or, ‘If we are represented by a union, we should bargain with our employer over it,’” Yelnosky said. “From the employer’s standpoint, this is going to make it more expensive to do business, and they are going to have a lot of employees who are upset.”

According to the Associated Press, as of Nov. 9 at least 27 states had filed legal challenges in six federal circuits in response to OSHA’s release of its vaccination rules. On Nov. 16, the Department of Justice and the Department of Labor filed a notice to start consolidation of the 34 petitions challenging the ETS. After a lottery was held, the 6th U.S. Circuit Court of Appeals was randomly selected to handle the consolidated case.

Leonard said that the most important thing to watch for from the court may be the pace at which it handles its review.

“If in fact the Sixth Circuit is not in favor of the OSHA ETS, it could try to slow-roll its review process, knowing that with each passing month it is effectively killing the mandate since OSHA has suspended implementation pending resolution of the legal challenges,” he said.

Any employer that doesn’t want to wait on the court challenges, however, is free to move ahead with a mandate on its own.

“To the extent an employer just wants to be done with the whole issue in order to reopen safely, there is nothing that prevents a company in Virginia from requiring all employees to get vaccinated as a condition of employment,” Leonard said.