Business owners who fall under the federal vaccine mandate for companies with more than 100 employees should prepare for compliance as they await a final decision on the rule, a legal expert said.
The on-again, off-again COVID-19 vaccine requirement is set for oral arguments Jan. 7 before the U.S. Supreme Court.
“You could chance it and scramble but that’s not any way to run a business – on a hope and a prayer,” said Adam Childers with the law firm Crowe & Dunlevy.
Childers, chairman of the firm’s Labor and Employment Practice Group, advises clients to have plans and policies in place and a roster of employees who are vaccinated and those who are not.
If the mandate is upheld, unvaccinated employees must be tested weekly for COVID-19. Under Oklahoma law, the cost of those tests falls on the employer, Childers said.
Companies must either buy kits and have a proctor to oversee the testing or send employees to a testing site.
If the closest site is 20 miles away from the workplace, do you also pay employees for their time and travel? If you choose to do the testing on-site, where will you purchase the 50 or 150 or 300 tests per week needed?
The logistics and expense could be problematic for companies that are not prepared, Childers said.
“Vaccinations have become such a personal hot spot for people and employers are caught in the middle,” he said.
The Occupational Health and Safety Administration published the Emergency Temporary Standard on Nov. 5 that applies to employers in all workplaces that are under OSHA’s authority and jurisdiction that have more than 100 employees companywide.
The ETS requires, with certain exceptions, that covered employees either be fully vaccinated against COVID-19 or wear face coverings and submit weekly COVID-19 test results to the employer.
Just one day after the ETS became effective, the U.S. Court of Appeals for the 5th Circuit stayed the enforcement. Then on Dec. 17, the 6th Circuit – assigned to hear all challenges to the ETS – lifted the 5th Circuit’s stay, meaning the ETS is again in effect and enforceable.
OSHA has stated that it will not issue citations for noncompliance with any of the requirements before Jan. 10 and will not issue citations for noncompliance with the testing requirements before Feb. 9, provided that employers are acting in good faith to comply, Childers said.
The Supreme Court must decide if the government is overstepping its boundaries by requiring vaccination or stepping up to do something beneficial for the people that they were unable to do for themselves, Childers said.
While decisions following oral arguments can take months to come down, this one likely will come much sooner.
“I don’t think it’s wise to guess how the justices will vote,” Childers said. “There are so many different ways the Supreme Court could go on it.”
Is the number 100 arbitrary and capricious? Do the reasons given for the standard stand up? Each justice also will be weighing his or her legacy, Childers said.
It’s a momentous time,” he said. “I think we’re in for a wild ride. This will impact hundreds of millions of citizens.”