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First Deadline on OSHA COVID Vaccine Rule Arrives; How Should Businesses Respond?

  • Emergency temporary standard set by Occupational Safety and Heath Administration set first deadline for this week
  • However, OSHA has suspended implementation and enforcement related to the standard as it faces a challenge in court
  • Businesses can familiarize themselves with the rule’s requirements in case the standard is upheld in court

Summary by Dirk Langeveld

Under an emergency temporary standard established last month by the Occupational Safety and Health Administration, businesses with 100 or more employees were to have certain COVID-19 vaccination policies established this week. While this deadline was rendered moot due to court challenges, employers still face the question of whether they should take any actions in response to the proposed rule.

The standard, published Nov. 5 in the Federal Register, gave eligible employers 30 days to establish a COVID-19 vaccination policy, determine which employees were vaccinated, and require unvaccinated workers to wear a face covering when in a workplace with others. The OSHA rule also sets Jan. 4 as the date when these employers must require workers to either be vaccinated or get tested weekly for COVID-19.

After the U.S. Court of Appeals for the Fifth District issued a stay on the emergency temporary standard, OSHA said it would suspend activities related to the implementation and enforcement of the rule until a final court decision on the matter. OSHA has also extended its public comment period on the standard to Jan. 19.

Legal status

The OSHA rule, along with other White House initiatives such as vaccine requirements for federal contractors and employees, have been met by a slew of legal challenges. The Sixth Circuit Court of Appeals has been selected to make a consolidated ruling on lawsuits related to the emergency temporary standard for larger employers, and has denied the federal government’s request to expedite the legal process on the argument that the virus continues to present a serious and ongoing threat to workers.

OSHA has also requested that the previously ordered stay be dissolved or that parts of it be lifted. If the stay is partially lifted, it could reinstate the masking and testing requirements while litigation on the issue proceeds. OSHA is also requesting that the stay be limited to allow employers to establish their own COVID-19 vaccine mandates, even if state or local laws prohibit them.

The court has set a deadline for today for parties to respond to OSHA’s request to dissolve the stay. A Dec. 10 deadline has been set for the federal government to reply to these filings.

The legal proceedings and OSHA’s suspension of implementation and enforcement mean employers are currently not under any obligations to abide by the emergency temporary standard and its deadlines. However, this could change if the court decides to lift the stay or make other modifications.

Opponents to the OSHA rule say the Biden administration lacks the authority to establish such a standard. Legal arguments against the rule have said it impinges on states’ rights regarding public health, should have been authorized by Congress, or lacks a proper public comment period. Some labor unions are opposing the measure for a different reason, saying the 100-employee threshold does not offer sufficient worker protections and that the rule should be extended to smaller businesses as well.

The White House holds that it has the authority to establish such a rule and that it is a necessary protective measure to respond to the ongoing COVID-19 pandemic. It has also argued that such policies have been effective in spurring more people to get vaccinated.

Employer actions

The OSHA rule came on the heels of several major companies establishing their own COVID-19 vaccine mandates. The Biden administration urged businesses to establish vaccination or testing policies even before the rule was published, and has continued to do so as the court challenges proceed.

A Willis Towers Watson survey, conducted in mid-November, found that 57 percent of employers either require their employees to be vaccinated or plan to do so. However, nearly one-third (32 percent) said they only plan to do so if the OSHA standard goes into effect. Eighteen percent have already established a policy, while only 7 percent plan to do so whether or not the OSHA standard is upheld.

The survey found that while 31 percent were concerned that a vaccine mandate could lead to a loss of workers, just 3 percent of those with a mandate in place said they have seen a major uptick in departures. Forty-eight percent said they thought a vaccine requirement would help them hire and retain workers.

The debate over whether to require COVID-19 vaccination has largely supplanted earlier efforts to incentivize the doses, a strategy businesses favored when the vaccines became widely available. Three-quarters of respondents in the Willis Towers Watson survey said they offered no financial incentives for getting the vaccine, while just 2 percent were modifying their health insurance plans by reducing premiums for vaccinated workers or issuing surcharges for unvaccinated workers.

The Connecticut Business & Industry Association says businesses have responded to the pause on the OSHA rule by either proceeding with their own mandate, ignoring the rule’s requirements for now, or preparing a vaccine policy while awaiting a court ruling. The organization recommends that businesses be prepared to comply with the Jan. 4 deadline if the rule is upheld in court, taking steps such as researching the standard’s requirements and drafting a vaccine policy.

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