While a federal mandate for large companies to require COVID-19 vaccinations or weekly testing plays out in court, there are things employers can do to be prepared, according to Greg Rouchell, partner and employment team leader at New Orleans-based Adams and Reese.
“Once vaccines became readily available in spring 2021, employers had a decision to make,” Rouchell told New Orleans CityBusiness. “Some employers implemented their own mandatory vaccination policies. Others did not want to force their employees to get vaccinated; instead, they simply encouraged employees to get vaccinated but left the ultimate decision to the employee.”
On Nov. 5, the element of choice changed for many employers when the Occupational Safety and Health Administration officially published its Emergency Temporary Standard (ETS) on Vaccination and Testing, which requires employers with 100 or more employees to either implement mandatory vaccination policies or require weekly testing in lieu of vaccination. Several days later, a federal appeals court temporarily halted the mandate after at least 27 states filed lawsuits challenging it.
What are the key takeaways employers need to know?
Unless the ETS is successfully challenged in court, there are two compliance deadlines that covered employers need to be mindful of. First, covered employers must fully comply by Dec. 6, 2021, with all sections of the ETS except for provisions requiring COVID-19 testing of unvaccinated or partially vaccinated workers. Second, covered employers must comply with the COVID-19 testing provisions for those workers by Jan. 4, 2022. In other words, the covered employer must adopt a policy and confirm the vaccination status of all employees by Dec. 6, and then, if the employer’s policy allows, begin mandatory testing for COVID-19 for unvaccinated or partially vaccinated workers by Jan. 4, 2022.
What are the questions still to be answered?
The biggest question is whether the ETS’s Dec. 6 deadline is the real deadline. On Nov. 6, the U.S. Fifth Circuit Court of Appeals issued a nationwide temporary suspension of the ETS. For now, we are in a holding pattern until things play out in the court system. It’s not likely that the judicial process will have completely run its course by Dec. 6.
Do smaller companies need to be prepared, since the federal government isn’t ruling out a mandate for them?
OSHA has concluded that the ETS is economically and technologically feasible for businesses with 100 or more employees. OSHA has solicited public comment and is seeking additional information to assess the ability of smaller employers to implement and follow the ETS. Thus, any small businesses that have concerns about the economics and feasibility of complying with the ETS should express those concerns to OSHA during the public comment period. It is possible that OSHA will conclude that the ETS can be extended to smaller businesses once the public comment period ends.
What are the chances of the mandate being struck down permanently?
The answer to this question varies depending on whom you ask in the legal punditry. There are compelling arguments on both sides of the constitutionality question. There are also intangible factors at play, including venue for the legal challenges and the makeup of the U.S. Supreme Court. In briefing before the U.S. Fifth Circuit, the government took the position that because there are challenges pending in other circuit courts, all of the various legal challenges must be consolidated into one proceeding and heard by a court that will be randomly selected by the Judicial Panel on Multidistrict Litigation (MDL). According to the government, the MDL should be in place by November 16.
Should employers make preparations anyway while the legal cases play out?
One thing employers can be doing now is determining whether the ETS even applies to their business. As a best practice, employers may want to begin preparations in case the courts ultimately uphold the ETS. Otherwise, employers may find themselves scrambling to meet deadlines in order to avoid the risk of hefty government fines for non-compliance.