President Joe Biden recently announced that he will instruct the Department of Labor to mandate all companies that employ more than 100 workers to require vaccinations or weekly COVID testing.
This announcement has left many employers questioning whether they must immediately comply, and whether such a rule will withstand legal scrutiny.
Nothing has changed for Virginia employers.
Biden has directed the Occupational Safety and Health Administration to issue an emergency temporary standard implementing the requirement. But the federal agency had not issued the standard as of Friday.
About 80 million workers across the country would be subject to the requirement. More than 2.2 million people working at more than 50,000 Virginia businesses, according to census estimates from 2018 released this year, would be subject to the new rules.
Once issued, it is sure to face legal scrutiny, which will likely result in an injunction until the legality of the mandate can be argued in court.
But the Arizona attorney general isn’t wasting any time. On Sept. 14, he filed a federal lawsuit challenging the new mandate, calling the upcoming emergency rule an unconstitutional exercise of “unbridled power.”
Lawyers have differing opinions on whether such a rule could legally be upheld and be within OSHA’s powers.
Jon Hyman, partner at Wickens Herzer Panza law firm in Ohio, carefully studied Biden’s proposal and believes issuing the emergency temporary standard is “almost certainly illegal.”
An emergency temporary standard skips OSHA’s traditional rulemaking process, Hyman said, and instead allows the agency to issue a temporary six-month standard to address a bona fide safety emergency in the workplace “as necessary to protect workers from grave danger.”
Of the 10 emergency temporary standards issued previously by OSHA, Hyman said three went into effect with no challenge and six were challenged, only one of which was upheld. The last remaining one, which went into effect earlier this year for health care employers, has been challenged, but no ruling has been issued yet.
Hyman suggests that there is “no doubt that the ongoing COVID pandemic continues to be a national emergency,” but he disagrees that OSHA will be able to demonstrate that the emergency temporary standard is “necessary to protect workers from grave danger.”
First, he suggests that limiting the rule to employers with 100 employees or more calls into question whether workplaces with less than 100 employees would not also be subjected to the same danger. That limitation calls into question why OSHA is not protecting them too if there is “grave danger.”
Second, Hyman believes the weekly testing alternative is problematic because it only identifies a small slice of time during the week and otherwise allows the risk of a positive COVID employee entering the workplace. “Thus, it actually permits the grave danger it’s trying to eliminate,” he said.
Hyman also refers to the current mitigation strategies such as masks and social distancing that OSHA already recommends which have been successful to mitigate risk in most situations.
Courtney Malveaux, a principal in the Richmond office of the Jackson Lewis law firm and a former member of the state’s Safety and Health Codes Board, believes that the vaccine mandates will survive legal scrutiny, especially since there is a testing requirement as an alternative.
Employers can offer alternatives to mandatory vaccines/testing by offering telework or unpaid leave until COVID is no longer a recognized workplace hazard, Malveaux said.
Four states, he noted, successfully promulgated emergency temporary standards upon finding that the COVID-19 pandemic poses a “grave danger” and survived legal challenges, including Virginia, California, Oregon and Washington.
OSHA found that COVID presented a “grave danger” when it issued an emergency temporary standard for health care employers, Malveaux said. Covered employers did not contest the “grave danger” finding, and it remains in effect today.
Biden also proposed mandating paid time off for vaccines and symptoms related to the vaccines. This also likely will be challenged if done through an emergency temporary standard because it is unclear if OSHA has the authority to direct employers to pay employees for time off.
The Families First Coronavirus Response Act, which expired last year, required paid leave related to COVID, but the law’s employer mandate was legislated through Congress which has such authority.
Biden also proposed mandatory vaccinations for any employer receiving federal dollars in the form of Medicare or Medicaid. This probably will withstand legal scrutiny since the president likely has the authority to tie receipt of federal dollars to certain conditions.
Since there currently is no regulatory framework upon which employers can rely, nothing has changed for employers at this point.
Companies can still choose to mandate vaccines and require proof of vaccination if that is something the business believes is necessary. If they do require vaccines, they must make accommodations for medical and religious reasons.