Navigating the Vaccine Mandate

For many of us right now, our focus is on the OSHA vaccine mandate that was issued on November 5, 2021, and goes into full effect on January 4, 2022. Many employers have been struggling to decipher the mandate requirements, keep up with the latest news, and implement policies that are compliant before the deadline. But as with most things in HR, this is no easy task and it’s ever-changing. Let’s talk about what we know, what we might expect, and how employers can successfully navigate what might come. 

Deciphering the mandate:

  • The mandate was published on November 5, 2021, and was effective immediately, with employers required to comply within 30 days and implement the testing requirements within 60 days. It will affect approximately 84 million employees nationwide. 
  • It impacts employers with 100+ employees, even if those employees are spread over multiple locations. In the 26 states that have OSHA state plans, it may also impact public sector employees. 
  • It gives employers the option to implement a full vaccine mandate or to allow onsite employees to test at least weekly and wear a face mask in lieu of vaccination. Remote employees are not required to test unless they are returning to work onsite, at which time they must test within 7 days prior to their return to the office. Employers are not required to pay for testing unless otherwise required to do so based on state law, contract requirements, or other written agreements.
  • Employers will be required to obtain and maintain proof of employee vaccination status along with a roster of all active employees’ vaccination status. This includes keeping a copy of each test result for unvaccinated employees. 

Status of Legal Challenges: 

  • The OSHA Emergency Temporary Standard (ETS) has resulted in multiple federal lawsuits. On November 6th, the U.S. Fifth Circuit Court of Appeals issued a stay order requiring that OSHA not implement the ETS until the courts could hear the case and make a final decision. 
  • On November 12th a three-member panel from the Fifth Circuit issued a lengthy order to continue the stay until the petitioners’ case could be heard. In the order, the panel stated that the petitioners’ challenges to the Mandate have a reasonable likelihood to succeed based on the merits of their arguments. 
  • On November 16th, a lottery was held to determine which court would hear the consolidated case of the 34 petitioners. Those 34 cases span across 12 different federal courts. The U.S. Sixth Circuit Court of Appeals was randomly selected to hear the case. It’s worth noting that the Sixth Circuit is made up of 26 judges, 20 appointed by Republicans and 6 appointed by Democrats. The case will be assigned to a three-member panel that will be randomly selected. The Sixth Circuit has three options- agree with the stay order, modify the current stay order, or vacate the current order and issue their own order. 
  • On November 24th, OSHA filed an emergency motion with the Sixth Circuit to end the stay. At a minimum, OSHA has asked the court to reinstate the masking and testing guidelines outlined in the ETS until the case is resolved. At this time, the Sixth Circuit has not issued a response to the emergency motion. Based on the Sixth Circuit schedule, the stay is likely to last until at least December 10th
  • It’s important to note that in the history of OSHA there have only been nine ETS orders issued and six of those were challenged in the courts. Of those six that were challenged, only one survived. 
  • Many states, including Alabama, have passed laws that are aimed at combating the mandate. Alabama passed Senate Bill (SB) 9 Limiting Vaccine Mandates on November 4th, which provides guidance to employers on making accommodations for employees who seek medical or religious accommodations and provides a standard form to be utilized (contained within SB9). The law makes denials of accommodation appealable and the employer cannot terminate employment until the appeal is determined. 

Preparing for Implementation:

With the stay order and the mandate’s future up in the air, what should employers do? 

  1. Stay up to date on the legal challenge. The legal experts are keeping a close watch on this and pushing out updates almost daily. If you don’t already, subscribe to resources such as SHRM and connect with local employment attorneys who send out regular updates and newsletters. 
  2. Look at what you’re currently doing that is compliant with the mandate. Are you still requiring masks in your offices, are you collecting and tracking vaccine status for those employees who are vaccinated, and how are you handling accommodations? Do you have a policy in place that outlines these requirements? 
  3. Then look at what you need to be doing to be compliant with the mandate. What mandate requirements are you not currently doing and what will it take for you to start doing them if and when the time comes? If you’re not tracking vaccine status, what steps do you need to take to gather that information, where will you maintain it, and how will you keep a roster? Are you going to require full vaccination or are you going to allow employees the option to test and mask up? Based on the steps you need to take to be compliant, what revisions do you need to make to your policy? 
  4. Review your state laws. Has your state, like Alabama, passed legislation to combat the mandate? How does the state legislation impact the steps you need to take to be compliant with the ETS and the state legislation? And keep an eye on your state legislation. If the ETS is allowed to go forward, that could impact the legality of those state laws. 
  5. Review your contracts. How would the mandate impact any contracts you have? If you are an employer with less than 100 employees but are a sub-contractor to a larger company, will you be required to comply with the mandate in order to be compliant with your contract? What information will you need to provide to the contract client to show that your employees working on the contract are vaccinated or have tested weekly? 
  6. Be prepared for accommodation requests. Again, if you’re in Alabama, the law just changed on accommodations and you have to use the state-provided accommodation form. And any denial of accommodation can be appealed. If you have locations outside of Alabama, do your research and find out of those states have passed legislation to counter-act the mandate and how those laws might impact how you implement the mandate. 
  7. Sit back and wait, but be prepared. Have your policy and procedures ready to go, but don’t implement them until the Sixth Circuit makes a final decision on the ETS. The petitioners have a strong argument based on the feedback provided by the Fifth Circuit panel’s order. And history shows that OSHA’s ETS orders have a long shot at surviving the courts. 

While it’s impossible to know which way the court will rule, the consensus within the legal community is that OSHA will have a difficult time effectively making its argument. 

Lorrie Coffey

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