Navigating the uncertainty over the vaccination rule for private businesses has left employers scrambling

November 13, 2021

The legal battle over a vaccine rule started almost immediately.

The federal Occupational Safety and Health Administration issued an emergency temporary standard on Nov. 4 requiring employees who work for a private company with 100 or more workers to get a COVID vaccination by Jan. 4 or submit to weekly testing.

The lawsuits were filed almost immediately around the country challenging the new rule. But two days later — on Nov. 6 — the U.S. Court of Appeals for the 5th Circuit issued an injunction that temporarily halted the implementation of the policy. Then on Nov. 12, the court issued an injunction preventing the enforcement of the rule until the matter can be litigated.

So what does this mean for those companies and employers affected by the rule?

Most experts believe that there will be a consolidation of all the cases and a single ruling will be issued. The case will likely be ultimately decided by the U.S. Supreme Court.

This uncertainty has left employers scrambling to decide whether to begin developing programs for compliance or wait until this is all resolved.

Companies with 100 or more employees should at least start to evaluate how they would comply and how quickly they can garner the resources for compliance even though many experts believe the temporary standard will not ultimately survive legal scrutiny.

OSHA can issue the emergency temporary standard based on a special provision of a law that permits the administration to implement the rule and forgo the normal and timely rulemaking process. But it can only be in place for six months and the rule must show that there is a “grave danger” to worker safety without such a standard.

Employers have expressed frustration with the 490-page rule because it puts the burden on companies to develop and implement policies on vaccination, testing and face coverings as well as to collect data on the vaccination status of all employees, provide paid time off for vaccinations and recovery, create a roster of those vaccinated and unvaccinated that must be readily presentable to OSHA inspectors on hours’ notice, and to log testing and provide other notice requirements for positive cases.

The rule states that employers can pay for the weekly testing or put this burden on employees. However, it also states that the testing and vaccination records will be considered medical records, and must be treated as such.

Because the collection of the data is considered a medical record, Virginia law likely makes it illegal for an employer to impose the payment for the testing on employees.

The Virginia Code makes it unlawful for “any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any medical records required by the employer as a condition of employment.”

Violators are subject to a civil penalty of up to $100 per violation.

The emergency temporary standard creates particular challenges for multi-state employers as well because different states have implemented their own standards that might conflict with the one from OSHA. Unvaccinated employees who work strictly outside or entirely remote need not comply with the weekly testing or face covering requirements. However, if an unvaccinated employee goes into the workplace, that employee must present a negative COVID test within seven days.

The rule also states that evidence of natural immunity is insufficient to satisfy the waiver requirement, other than employees who test positive for COVID within the last 90 days. Those employees need not provide weekly proof of a negative test for the duration of the 90 days but must still wear face coverings.

If the injunction is lifted and the rule is upheld as lawful, it is likely that the company burdens will toll and employers should have time to prepare for compliance, but this is not a certainty.

Companies should be consulting with an employment attorney about how best to draft a policy for vaccination and whether some form of voluntary compliance would be appropriate pending the final outcome of the litigation. For example, employers could immediately implement paid time off for workers to be vaccinated as well as paid leave for any negative effects of the vaccine.