Town Hall: OSHA Vaccine Mandate Compliance with Dykema

Since President Biden’s announcement on Sept. 9, 2021, that OSHA would soon be issuing an Emergency Temporary Standard (ETS) mandating employee vaccinations, many questions have been asked regarding the requirements, enforceability, logistics of implementation, and practical effects of the ETS on employers during a time of labor shortages and opposition to mandatory vaccinations. While the issuance of the ETS answers the first question regarding its basic requirements, employers, lawyers, judges, and government agencies must now turn their attention to answering the many remaining questions.

While litigation in the Fifth Circuit resulted in this ETS being stayed, employers still should be taking steps to comply with some aspects of the ETS so they are not caught unprepared should the stay be lifted, which remains a possibility.

Jim Hermon, member of the labor and employment practice group at Dykema joined the Chamber’s Vice President of Government Relations, Brad Williams, to discuss the requirements of the ETS and provide specific recommendations for employers who need to prepare to act if the stay is lifted.

Vaccine Mandate: Where it Currently Stands

The Emergency Temporary Standard was issued with a couple of deadlines, but before those dates were reached, lawsuits had been filed across the country opposing the ETS. Two weeks after being issued, litigation in the Fifth Circuit resulted in the ETS being stayed. Since, all objections to the ETS have been consolidated and sent for review to the Sixth Circuit, with hopes of a decision by roughly the end of the year.

Noted Hermon on the future of the ETS, “The Sixth Circuit is a very conservative court…so I think that they are likely to uphold what the Fifth Circuit decided and say we are not going to enforce this OSHA ETS and that will take it to the Supreme Court from there. And given the composition of the Supreme Court, I would be very surprised if they were resurrected from there.”

Dykema’s Recommendations for Businesses

With the ETS being stayed, Dykema is advising that businesses steer a middle course: create appropriate plans and procedures, develop a vaccination policy, and gather information on current employee vaccination statuses. However, nothing needs to be rolled out at this point, since it is unclear whether testing will be mandated.

Even without the ETS in place, MIOSHA will continue to enforce their general duty clause obligation that requires that all employers provide a workplace that is free from recognized hazards. With that in mind, if a workplace has a COVID-19 outbreak, MIOSHA could potentially find the employer in violation of the general duty clause for not requiring common sense procedures, like enforcing mask mandates and social distancing.

Mandate Enforcement: What it Looks Like

If the court upholds the ETS, there are two ways that an employer could be found in violation of the mandate: (1) random inspection and (2) employee complaints. Both would result in a MIOSHA inspection, with citations varying.

Testing Component of the Mandate

As for the testing component of the ETS, only proctored tests are an acceptable form of COVID-19 testing, meaning the test must be administered either through the workplace or through a tele-communication service.

Who is responsible for paying the cost of performing the COVID-19 tests per the mandate, could vary from state to state. However, as written the OSHA ETS does not require that employers pay for the cost of COVID-19 testing. Of course, there are exceptions.

“If the testing is being offered as a reasonable accommodation to a religious objection or a disability, under those circumstances, the employer must absorb the cost,” said Hermon. “If the employee is saying, I’m not getting vaccinated because I don’t want to be vaccinated and I have the freedom not to do that, then the employer can say then your decision to pay for the cost of the test.”