While nearly 60% of U.S. population is
The Occupational Safety and Health Administration, a regulatory agency in the U.S. Department of Labor, has mandated that employers with 100 or more employees either require a vaccine mandate or require mandatory weekly testing. Otherwise known as the Emergency Temporary Standard, this mandate would last for six months and affect practically every industry in the country, from manufacturing and retail to agriculture and logging, says Patrick Miller, a lawyer with a focus on workplace safety regulations at Sherman and Howard.
“The ETS does not apply to employees ‘while working at home’ — however this is a limited exception,” he says. “The ETS will apply to every employee at every point they enter the workplace; therefore only employees who truly never go to the office will be excluded.”
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Originally set to go into effect on Jan. 4, ETS has been delayed after Texas Attorney General Ken Paxton, along with the states of Louisiana, Mississippi, Utah and South Carolina, filed a lawsuit against the Biden Administration, claiming that the vaccine mandate should be declared unlawful. This means OSHA cannot enforce the ETS as of now.
However, some employers are choosing to continue to impose the mandate, as long as their headquarters is not in a state where a lawsuit has been filed, says Dr. Bravata, chief medical officer at Castlight, a healthcare navigation platform and a partner with the CDC. By and large, Dr. Bravata believes many employers are hoping to see the ETS go into effect.
Unless an employee is fully remote, an independent contractor or exclusively works outside, they will be included in the ETS’s regulations. In terms of the company’s size, employers with at least 100 employees on Nov. 5 will be expected to follow the mandate. If an employer reaches 100 employees while ETS is in effect, they will still be included. The same goes for an employer whose numbers dip below 100 while ETS is in effect.
“The notion of what makes for a hundred employees should be interpreted in the most liberal way,” Dr. Bravata says. “This is so the vaccine mandate applies to the greatest proportion of the workforce.”
As for those with medical and religious exemptions, they will still be required to test weekly and wear masks indoors. Dr. Bravata notes that employers do not have to pay for tests under the OSHA mandate, nor do they have to provide a testing option for any employee who has not qualified for an exemption.
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“Employers recognize that the strictest interpretation of who has a medical exemption is much narrower than people claim,” says Dr. Bravata. “But on the religious side, most employers are not verifying if that employee has gotten a tetanus vaccine or other routine immunizations in the past two years.”
While employers may be inclined to be more flexible when it comes to defining a religious exemption, Miller recommends that employers qualify exemptions using the same standards provided by Title VII, which deals with religious discrimination, and the Americans with Disabilities Act. The ADA accommodates those who cannot be vaccinated safely due to a defined medical condition, such as an autoimmune disease, an allergy to a vaccine ingredient or because they are undergoing chemotherapy.
If an employer does not comply with every aspect of the ETS, OSHA has the authority to issue citations, which can range from $13,000 up to $130,000, given that the employer is proved to be intentionally negligent, explains Miller.
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With the question of a national mandate hanging in the balance, employers are weighing their options. Seven percent of employers plan to mandate a vaccine whether or not there is a national mandate in place, according to a survey by Willis Towers Watson, and 48% believe a vaccine mandate would help them recruit and retain employees.
“In a tight labor market, talent could go to a competitor who had not put the mandate in place,” Dr. Bravata says. “But if there is a national mandate, there’s less likelihood that someone would go to a smaller employer to avoid the mandate.”
As employers face new and ever-changing compliance challenges with boosters now in the picture and work to accommodate employees struggling with long-term effects from COVID, OSHA guidelines will not be the only COVID regulation on their minds.
“Many, if not the majority of employers, want to have vaccine mandates at their workplaces in order to keep their workplaces safe,” says Miller. “At this time, the ETS is the subject of multiple legal challenges which will be consolidated into one case. Whether the ETS ultimately goes into effect depends upon the outcome of these challenges.”
