Last week, the Occupational Safety and Health Administration published its long-awaited and already highly controversial temporary emergency standard, which requires employers with 100 or more employees to either require vaccinations for their staff or carry out weekly tests.
The 500-page mandate. was met with an expected backlash, and lawsuits were filed the same day it was published. The first, from a coalition of states and corporations filed in the 8th U.S. Court of Appeals, argued that "the power to force vaccinations" lies with the states and that the ETS goes "beyond workplace safety and into public health policy," "exceeds OSHA's statutory jurisdiction.
By Tuesday evening, 27 states had filed a lawsuit, and a decision by a federal appeals court in Louisiana had blocked the ETS from entering into force. When disputes arise, some labor lawyers fear that the increased confusion for employers will expose more of them to penalties for failing to comply with the January 4 enforcement date.
"OSHA is likely to have some patience with employers who do not follow the rules "claiming that they have delayed implementing the mandate-or-test rule pending a final court decision," said Atlanta-based Fisher & Phillips LLP attorneys in a statement, "and the agency has significant weapons at its disposal in the form of
The mandate places a huge burden on employers, especially companies that have multiple locations, "said Randi Winter, a partner at Spencer Fane LLP in Kansas City, Missouri. She pointed to litigation filed by independent parties, including a lawsuit filed by two employers in Wisconsin portraying the ETS as a "lose-lose-situation for employers."
On the one hand, they risk fines if they do not follows, but they also risk losing employees if they maintain the mandate, Winter said.
Opponents also claim that the mandate violates employees' individual rights and freedoms, although workers can apply for exemptions based on medical or religious reasons.
Both. types of exceptions are subject to reasonable adjustments if they are considered valid ̵
“There are expectations that there will be people with newfound religions who cite religious objections and that some organizations might get around this by just letting everyone declare a religious objection themselves, "said Gary Pearce, chief risk architect at Aclaimant in Chicago.
" ETS tries to address this by becoming very special about the declaration. character, including cracking down on those who say they do not have their documentation. Applicants for these exemptions still have to go through a complicated weekly test. ”
Test guidelines prohibit self-service testing and free employers from covering test costs. Mr Pearce noted that there is an administrative burden in collecting and maintaining records for OSHA and in justifying their decisions regarding accommodation.
"OSHA's clear preference is that there is no test option," he said. "The counter-argument is that the government, given the language of this demand and its public announcements, is trying to stack the game as hard as it can to make life difficult for those who do not want to give in to the vaccine requirements." 19659002] "They will have the backing of employers who exercise reasonable discretion when they deny what appear to be frivolous exception claims."
Pearce said, about half of them are governed by state-specific OSHA plans, which according to the ETS must be at least as effective as the federal plan.
some delay ", he said, noting that there will be some overlap between state mandates, all of which must meet a certain federal standard, which sets the course for a" slow walk "towards compliance.
Implementation of the mandate. difficult, as ex Perts says OSHA does not have the resources to go after all the companies that do not follow them.
Employers who get stuck will be the ones who "talk to the rules" and are reported by their own employees, Mr. Pearce said. Catalog