The Biden administration’s vaccine rules for employers are back on—at least for now—making quick action and compliance key for HR as deadlines approach.
A federal appeals panel on Friday reinstated President Biden’s rule requiring scores of companies to mandate that their workers get vaccinated against COVID-19 or submit to weekly testing.
Under Biden’s mandate—the rules were officially released Nov. 4 by the Department of Labor’s Occupational Safety and Health Administration—employers with 100 or more employees were required to implement a COVID-19 vaccination requirement for their workers and to offer a weekly testing alternative for those who refuse or are unable to receive a vaccine by Jan. 4. But a Nov. 6 ruling from the U.S. Court of Appeals for the Fifth Circuit placed a stay that cited “grave statutory and constitutional” issues with the mandate. As a result, OSHA said in mid-November that it was suspending enforcement of the Biden administration’s employer vaccine rule.
But after the federal appeals panel’s Friday ruling, the stay has been lifted and the mandate is back in play. Because of the delay, OSHA wrote on its website it “is exercising enforcement discretion with respect to the compliance dates of the [Emergency Temporary Standard].” OSHA says it will not issue citations for failing to comply with any requirements of the standard before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Although the mandate rule is bound to continue to face more legal challenges—more petitions have already been filed since the Friday court ruling—it means that company and HR leaders are wise not to waste any more time in preparing for compliance, says Dr. Jeff Levin-Scherz, population health leader, Willis Towers Watson.
“The lift on the stay means that employers should move forward with finalizing their vaccine and testing policies and move toward implementation,” he says. “Employers should continue developing the policies and procedures and the infrastructure necessary to comply with the OSHA ETS, including testing for those who have medical or religious exemptions.”
Just as critical, he says, is that company and HR leaders continue to emphasize the importance of vaccination and booster shots to employee populations—especially as the Omicron variant takes hold and wreaks havoc on workplaces.
The latest ruling is another confusing piece of the puzzle for employers who have been watching the legal volley of Biden’s vaccine mandate over the past month-and-a-half. Although legal challenges have made the mandate’s future unclear, legal experts told HRE that employers shouldn’t dismiss the litigation and should not stop preparing for the ETS to go into effect.
“If it is upheld, you don’t want to be behind the eight ball. You want to make sure you have procedures in place,” Melissa Gonzalez Boyce, an attorney and legal editor at XpertHR, said. “The ETS has so many compliance obligations that are so intercut, so arduous on the employer, that it’s not something an employer will be able to pick up.”
Although the legal wrangling over the rule put many organizations in wait-and-see mode, scores of employers said they were moving ahead with vaccination requirements, regardless of the future of the ETS. Handfuls of employers have announced requirements in recent months, and a Willis Towers Watson survey found that many employers have or plan to mandate vaccinations whether or not it’s required by the federal government. The consulting firm’s survey of 543 U.S. employers—conducted before the discovery of the Omicron variant—found that 57% of all respondents either require or plan to require COVID-19 vaccinations for their employees.
Getting more serious about COVID-19 vaccinations was a predictable outcome, especially with concerns over Omicron alongside the Delta variant, which is making COVID cases surge nationwide, says Carol Morrison, senior research analyst at the Institute for Corporate Productivity (i4cp).
“When we consider the damage done by the Delta variant, and now Omicron—on top of the hundreds of thousands of deaths from the original COVID outbreak—I think many employers feel they must take strong action to try and influence people to take care of themselves, their colleagues and others,” she says. “At some point, employers also have to act to stem the financial and emotional costs that increase when workers become ill and can’t work or come to work and pose potential threats to colleagues.”