Where Federal Employer Vaccine Rules Stand as Omicron Stresses Vaccinations

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Over the weekend we learned that the 6th Circuit appeals court decided to allow OSHA to enforce its vaccine-or-testing rule for companies with more than 100 employees.

The President came out over the weekend with a direct message regarding the current Delta and Omicron variant winter surge.

“For the unvaccinated, we are looking at a winter of severe illness and death for the unvaccinated — for themselves, their families and the hospitals they’ll soon overwhelm. But there’s good news: If you’re vaccinated and you have your booster shot, you’re protected from severe illness and death,” the President said.

Back in September, Biden announced plans that he hoped would slow the spread of COVID and help get the country back into a new normal.

For employer’s and their role in managing the pandemic, there are three employer vaccine rules going through the court system that will affect employee vaccinations to help keep the economy open during the Omicron wave.

  1. 100+ Employee OSHA Rule
  2. Health Care Workers Vaccination Rule
  3. Federal Contractor Mandate

Each of these rules have been forced to go through the court system to validate the legality of requiring vaccines to the masses.

This is a careful balancing act of understanding our role to keep our community healthy from a deadly disease that could lead to more workplace shutdowns over personal choice to not vaccinate.

Since the 100+ employee vaccine OSHA rule was originally supposed to take effect in two weeks, let’s look at where the rules stand in the courts and what employers should consider as 2022 approaches.

Will the 100+ Employee OSHA Rule happen?

The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers.

  • Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week
  • Workers must get up to four hours of paid time off to get vaccinated during normal work hours and provide sick leave for workers to recover from any side effects
  • The rule does not require employers to pay for or provide testing to workers who decline the vaccine
  • Unvaccinated workers must also wear face coverings while on the job by Dec. 5 (or anytime this becomes approved)

OSHA will be enforcing this rule just like the agency enforces any of the other rules that are in place, and employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

However, with the legal challenges, OSHA said they will not issue citations for noncompliance to employers before January 10.

Over the weekend we learned that the 6th Circuit appeals court decided to allow OSHA to enforce its vaccine-or-testing rule for companies with more than 100 employees.

This ruling was looking at various lawsuits targeting the OSHA policy that were consolidated before the 6th Circuit.

“Fundamentally, the [emergency temporary standard] is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” the Cincinnati-based 6th Circuit said in its opinion Friday.

In her concurrence, Judge Julia S. Gibbons wrote: “Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.”

This rule will now face the Justice Kavanaugh in the Supreme Court to put it on hold while the appeals process plays out.

The Supreme Court is expected to have the final say on the Biden administration’s vaccine mandate and is scheduled to hear oral arguments in challenges on January 7th.

Will the Health Care Workers Vaccination Rule happen?

A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing as there is a higher bar for health care workers given their critical role in ensuring the health and safety of their patients.

The rule covers all employees, clinical and non-clinical, at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

One appeals court has backed the requirement, but two other appeals courts have doubted the mandate’s legality, leaving it blocked in half the states in the country.

This rule is currently being reviewed by the Supreme Court and on Thursday they were asked by the Justice Department to let the government fully implement the requirement for health care workers at providers that participate in Medicare or Medicaid.

The justices gave those challenging the mandate a December 30 deadline for responding to the DOJ request to reinstate it.

Will the Federal Contractor Mandate happen?

In September, the President signed an executive order requiring all federal workers be vaccinated against COVID-19, with no option of being regularly tested to opt-out of the requirement. As President, Biden has the authority to do this for any federal employee.

The President also signed an executive order directing the same standard be extended to employees of contractors who do business with the federal government.

The administration’s federal contractor mandate remains frozen nationwide after the 11th US Circuit Court of Appeals left a judge’s order in place on Friday, December 17, 2021, blocking nationwide enforcement of the vaccine requirement.

The federal contractor mandate may soon head to the Supreme Court as well.

Conclusion

In the end, it seems that OSHA and the federal government do have the legal ability to put these requirements in place during a pandemic.

The fear is what the unvaccinated will do if the requirements go through.

Will employees leave their jobs? Will it be difficult for employers to replace those that do leave?

These questions come, however, as a more easily spreading variant, Omicron, looks to wreak havoc on the economy and health care system again.

CNS Occupational Medicine wants to keep your workers safe and healthy on the job, allowing you to continue the production that keeps your business running. Our knowledgeable examiners are focused on best-in-class customer service when it comes to treating workers and employers to create long term health and wellness.

We offer services to contribute to your company’s Return-to-Work Plan, including pre-shift screenings meant to test employees before starting their shifts. Risking the health of your employees and your business is not worth it.

Start your customized health plan to meet your business needs and keep your employees healthy and safe. For more information, contact us at 800.551.9816 or info@cnsoccmed.com.