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Vaccine mandate must prove COVID a 'grave danger' in the workplace

FILE - In this Sept. 14, 2021 file photo, a syringe is prepared with the Pfizer COVID-19 vaccine at a clinic at the Reading Area Community College in Reading, Pa.  President Joe Biden has directed OSHA to write a rule requiring employers with at least 100 workers to force employees to get vaccinated or produce weekly test results showing they are virus free.(AP Photo/Matt Rourke, File)
FILE - In this Sept. 14, 2021 file photo, a syringe is prepared with the Pfizer COVID-19 vaccine at a clinic at the Reading Area Community College in Reading, Pa. President Joe Biden has directed OSHA to write a rule requiring employers with at least 100 workers to force employees to get vaccinated or produce weekly test results showing they are virus free.(AP Photo/Matt Rourke, File)
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It's been two weeks since President Joe Biden announced a federal vaccine or testing mandate for employers with 100 or more workers and companies are anxiously awaiting details from the Labor Department.

Once the rules take effect, more than 100 million Americans will be required to get the shot, including 80 million private-sector employees, 17 million health care workers and over 4 million federal workers and contractors.

While some employers are eager to comply with the guidance and boost workplace vaccination, others are preparing to challenge the mandate in court. That has raised the stakes for the Occupation Safety and Health Administration (OSHA), which is responsible for drafting the rule.

OSHA has been working quietly behind the scenes on an emergency temporary standard that can stand up to legal challenges. Their strongest position will be establishing the need for a mandate to protect employees against the "grave danger" of COVID-19.

"OSHA is very aware this is something that's being looked at with tremendous scrutiny," said Helen Rella, an employment attorney with Wilk Auslander. The more clearly the agency is able to articulate the dangers of COVID and provide detailed steps to mitigate it, the stronger its position against constitutional challenges.

"They are going to anticipate ... challenges and they want to head that off at the pass," Rella said, predicting the final emergency temporary standard will be very detailed.

Already, 24 Republican-led states have announced plans to sue the Biden administration over the vaccine and testing mandate. The Republican attorneys general expressed skepticism that OSHA could "meet the high burden" of proving most employees are in "grave danger." They argued that younger workers have a lower risk of hospitalization and death from COVID-19. Over 77% of COVID deaths have been in people 65 or older.

Last week, the Job Creators Network, a conservative small business advocacy group, also announced plans to file a lawsuit to block the implementation of the OSHA guidance when it's released.

"It's one thing if a private company of any size wants to require employees to be vaccinated. It's a whole different ballgame when the federal government is compelling these businesses to police their employees," said Elaine Parker, president of the Job Creators Network Foundation. The group is filing suit with some of its small business members and their employees.

The Job Creators Network along with other business groups have also sounded the alarm over the risk that some employees would quit rather than be forced to get a shot or weekly COVID test.

"The biggest issue these people are facing is the labor shortage," Parker said.

In a letter to the White House Safer Workforce Taskforce, the Association of General Contractors, which represents over 27,000 construction firms, warned that the vaccine mandate could "exacerbate the industry's labor shortage" while increasing the cost and completion times for federal projects, including infrastructure.

The group was specifically concerned about the vaccine mandate for federal contractors, which will take effect in a matter of days under an executive order. The industry is already experiencing high levels of vaccine skepticism and a worker shortage, the trade group noted. Firms fear many of their workers would quit for a job with another contractor that doesn't have a mandate rather than get the shot.

Hospitals that are already short-staffed, have reported dozens of employees resigning or facing termination over vaccine requirements. Long-term care facilities are facing a potential "exodus" of unvaccinated workers. Police officers in Los Angeles, San Francisco, Chicago and Oregon have threatened lawsuits and mass resignation if they are forced to get shots.

Smaller businesses have voiced concerns about the potential costs of monitoring employees' vaccination status or weekly test results. Penalties for violating the rule of up to $14,000 per violation.

"When the administration announced this rule, they really framed this to be about big business," Parker noted. "This is going to disproportionately impact small businesses from a cost perspective and a tracking perspective."

The OSHA rule is expected to affect roughly 170,000 businesses that have 100 or fewer employees, or less than 1% of all businesses, according to government data. Additionally, many of the country's largest employers have already enacted vaccine requirements for some or all of their workers.

Employers that mandated shots have reported high rates of uptake. Tyson Foods, which employs 120,000 workers, saw its vaccination rate increase from 45% to over 72% after issuing a mandate in August. United Airlines reported Wednesday that 97% of its 67,000-person workforce was vaccinated. United CEO Scott Kirby told CNN last week that only "a handful" of employees quit rather than getting the shot.

The courts have had a strong record of upholding vaccine mandates by private entities during the pandemic. Recent rulings favored shot requirements by Houston Methodist Hospital and Indiana University. New lawsuits continue to pile up with recent challenges to a Kentucky hospital, the University of Maryland and the University of California.

It's less clear how courts could rule on a nationwide Labor Department mandate. Emergency temporary standards do not go through as rigorous an approval process as other federal rules and are subject to greater legal scrutiny.

OSHA has only issued 10 emergency temporary standards since 1971, six of them were challenged in court and only one was upheld. If the rule is not carefully tailored to address the risk to workplace safety from COVID-19, it could be overturned.

There is little precedent for an order on workplace safety in the middle of a pandemic that has killed over 675,000 Americans. "This is a highly unusual situation," Rella noted. "But there's a line of thinking that it's necessary to ensure the safety of employees in the workplace."

Those who are tracking the mandate are in a holding pattern until OSHA releases its guidance. The White House has said the rule will likely come in a matter of weeks.

There could be a preview of the requirements for private-sector employers at the end of the week. On Friday, the Safer Federal Workforce Task Force is expected to release draft guidance on its mandate for federal contractors. The task force is expected to release definitions, explanations of protocol, compliance and exceptions to the mandate.

The White House signaled earlier this month that federal employees would have 75 days to comply with the order before facing "progressive discipline."

The Biden administration has ordered four distinct vaccine mandates. Two were issued by executive order affecting federal employees, including members of the military and federal contractors. The Centers of Medicare and Medicaid Services is issuing the third rule for health care and long-term care workers at Medicare and Medicaid-certified facilities.

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The OSHA rule will apply to the roughly 80 million employees at companies with 100 or more people. According to Reuters, the standard could also extend to state and local government workers, including educators and school staff in 26 states and two territories that have a state OSHA plan.

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