Vaccine Mandate Update: Stay Lifted and Compliance Required

December 23, 2021

The Biden administration had announced and implemented a vaccine mandate and testing measures for government employees, federal contractors, and private employees in recent months. States and corporate power swiftly filed lawsuits challenging the administration’s directives, which were still being fought in courts around the United States.

The New Vaccine Mandate OSHA Rule

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) which included a vaccine mandate, specifically requiring all employers with 100 or more employees to require their employees to be fully vaccinated or, if unvaccinated, to produce a negative test result at least weekly, and to wear face coverings in the workplace (with some exceptions). The OSHA rule was met with widespread opposition and many legal challenges. However, because the government was just barred from enforcing the new vaccine mandate, it was unclear when, if ever, the mandate would take effect. As a result, employers were obliged to acquaint themselves with the Rule’s requirements so that they would be able to comply if and when the Rule went into force. The OSHA rule was stayed nationally on November 6 by the United States Court of Appeals for the Fifth Circuit.

6th U.S. Circuit Court of Appeals lifts the Stay

The Sixth Circuit Court of Appeals revoked the sister appellate court’s stay of OSHA’s rule that companies with 100 or more U.S. employees undergo vaccination or weekly testing, as well as facial coverings, as part of a complete COVID-19 mitigation strategy on December 17, 2021. Around 80 million Americans will be affected by the removal of the stay. OSHA has demonstrated the ubiquitous harm that COVID-19 causes to employees—unvaccinated workers in particular—in their workplaces according to the Court. The Court agreed with the Department of Justice (DOJ), which argued in support of the Biden administration policy, that the danger to workers is substantial enough to grant OSHA to take steps to prevent the spread of COVID-19 and emerging versions like the highly infectious Omicron variant. The Court dismissed petitioners’ claims that mandatory vaccination or testing requirements impose significant costs on businesses and risk further understaffing, finding that OSHA conducted thorough economic analyses prior to issuing the ETS, demonstrating the standard’s feasibility, and that any concerns to the contrary are “entirely speculative.”

The early deadlines for compliance with the ETS have passed as a consequence of the legal wrangling, but the vaccine-or-test requirements are slated to take effect in January 2022, unless the Supreme Court takes up the case and rules quickly. For such reasons, private employees are required to comply with the OSHA rule at the earliest.

Compliance with the Occupational Safety and Health Administration’s (OSHA) Rules

Deadlines. According to OSHA, the new compliance dates are: Before January 10, 2022, OSHA will not issue citations for noncompliance with any of the ETS standards. OSHA will not issue citations for failure to comply with testing requirements after February 9, 2022, as long as an employer is making reasonable, good faith efforts to comply with the standard.
Employers who are covered. All employers with 100 or more employees are governed by the ETS. Part-time employees and remote workers are counted as part of the total number of employees for coverage purposes, but staffing agency personnel are not. Only workers working in the United States are counted. If two or more connected companies manage safety problems as one firm, they may be considered one employer and their employees must be included collectively. Employees with a history of COVID-19 infection are not excluded from the vaccination, testing, or masking requirements.
Vaccines require time off. Employers who are covered must assist vaccination by allowing appropriate time, including up to four hours of paid time, for each vaccination dose to be administered. Employers are required to offer adequate time off and paid sick leave for employees to recuperate from adverse effects after each dose.
Masking. Unvaccinated employees must wear a face mask while at work, according to all covered employers.
Vaccination or testing every week. Unless the employer implements and enforces a policy requiring any unvaccinated employee to produce a negative test weekly and wear a mask while in the workplace, all covered employers must implement and enforce a policy requiring their employees to acquire the required shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson. All covered companies must verify that any employee who is still unvaccinated beyond the deadline (now February 9, 2022, assuming the employer is making good faith steps to comply) begins providing a confirmed negative test to their employer at least once a week. This condition is not met by COVID-19 assessments that are both self-administered and self-read.
Proof of Vaccination. Employers must determine each employee’s vaccination status. A record of immunization from a health care practitioner or pharmacy, a copy of the COVID-19 Vaccine Record Card, a copy of medical documents confirming the vaccination, or another copy of immunization records from a public health system are all acceptable forms of proof of vaccination status. When an employee is unable to present proof of immunization, a signed and dated employee attestation is sufficient. These records must be kept for the duration of the ETS and are subject to OSHA rule.

What Private Employers need to do?

Businesses with 100 or more employees must adopt OSHA-compliant policies by January 10, 2022, and execute testing procedures for employees who are not completely vaccinated by February 9, 2022. To stay on top of developments in these cases, all businesses should continue to cooperate with their legal advisers. Businesses should also assess their present policies and rationale, as well as establish a prospective action plan to handle the most recent changes.

Contact our employment attorney for compliance and legal consultancy on the recent developments to avoid non-compliance.