The deadline for requiring U.S. workers to be vaccinated or tested for Covid-19 on a weekly basis is quickly approaching, but uncertainty about how legal battles over the mandate will play out has left businesses unsure how to best prepare.
Those tasked with ensuring that their companies comply with the Biden administration mandate will need to be flexible as they take steps to implement rules that will go into effect on January 4, according to legal and human resource experts.
The Occupational Safety and Health Administration’s rules require private-sector employers with 100 or more employees to ensure that their employees are fully vaccinated or take a weekly Covid-19 test and wear a mask at work. For noncompliance, OSHA has the authority to levy fines on businesses. The OSHA emergency temporary standard can be in effect for six months before being codified as a permanent standard requiring rulemaking.
The Fifth Circuit Court of Appeals in New Orleans granted an emergency stay prohibiting enforcement of the rules for the time being, citing “grave statutory and constitutional issues.” The Sixth U.S. Circuit Court of Appeals in Cincinnati was chosen at random on Nov. 17 to hear legal challenges to the mandate, and the Biden administration filed an emergency court motion on Tuesday seeking the mandate’s immediate reinstatement.
Approximately half of the organizations polled by the Society for Human Resource Management say the uncertainty surrounding legal challenges to vaccine mandates is impeding their implementation. “The rest are actually preparing for compliance,” Emily Dickens, SHRM’s chief of staff, head of government affairs, and corporate secretary, explained.
Many businesses were already in the process of implementing various types of vaccine requirements before the ETS was issued, and the emergence of the Delta variant may have accelerated those efforts, according to Kevin Troutman, an attorney at Fisher Phillips and a member of the law firm’s Covid-19 task force.
“However, [when] the president’s announcement…was made public, people were once again doing everything they could to understand the requirements and begin to implement them,” Mr. Troutman added.
According to experts, businesses are facing a number of implementation challenges. Companies, for example, must decide how to record and submit compliance with the mandate, as well as whether to strictly require employees to be vaccinated against Covid-19 or allow workers who are vaccine resistant to test weekly and mask up at work.
Furthermore, despite a provision in the mandate stating that employers are not required to provide or pay for tests, businesses must decide whether to bear the costs in order to retain employees.
“Certainly, at this point, before we get too close to the January vaccination deadline…you should be doing all of the back-office things that you are going to need to do to be in compliance,” said Brett Coburn, a partner at the law firm Alston & Bird who specializes in employment litigation and counseling.
However, keeping an eye on the appeals process is critical. “I wouldn’t make a large financial commitment for testing or anything else until we know what’s going to happen,” Mr. Coburn said.
According to Helene Hechtkopf, a partner at the law firm Hoguet Newman Regal & Kenney LLP who focuses on employment and commercial litigation, how a company’s implementation will unfold will depend on its size.
“I’ve heard of companies hiring someone to perform testing once a week.” “However, if you have 100 employees and three of them are unvaccinated, that doesn’t make sense,” Ms. Hechtkopf said.
A tangle of state and local laws further complicates matters. Despite the fact that federal law takes precedence over state laws, it is critical for businesses to understand what other issues they may face in the jurisdictions in which they operate.
This is especially true when it comes to who will pay for weekly testing, according to SHRM’s Ms. Dickens, who added that some cities and states already have their own mandates, and roughly one-third of businesses surveyed by the organization plan to cover testing expenses.
“Remember, insurance may cover the costs of Covid tests, but there are several laws prior to Covid requiring employers to pay for mandatory medical tests, or reimburse their employees for such testing,” Ms. Dickens said.
Given the widespread opposition to mandates and the lack of clarity about the legal challenges that lie ahead, industry experts emphasize the importance of communication between employers and their employees.
“On one end of the spectrum, you can say nothing and just be quiet and wait to see how things play out in court,” Mr. Coburn explained. “On the other end of the spectrum, you could say, ‘We don’t care what the courts say; we’re going to implement an ETS-compliant policy’… The middle ground is to maintain some communication with your employees while confronting the fact that there is uncertainty.”
According to experts, the bottom line is that businesses should be prepared for any scenario.
“I think some companies decided to tap the brakes a little and just see how this all worked out,” Mr. Troutman said. “However, we strongly advise that you, at the very least, remain prepared as an employer.” And that means, at the very least, assessing…who is vaccinated and who isn’t in your workplace… If you don’t do at least that much, and let’s say the ETS moves forward on or near its current schedule, you’ll be way behind.”