The fate of a COVID-19 vaccine mandate for large employers now rests with the Supreme Court of the United States.
Hearings on the Occupational Safety and Health Administration’s Emergency Temporary Standard, which stipulates businesses with 100 or more employees require their employees be vaccinated or be tested weekly and wear masks if they choose to not get vaccinated, begin on January 7, 2022. The Supreme Court concurrently will address a vaccine mandate from the Centers for Medicare & Medicaid Services that applies to workers in the health care sector. Federal courts blocked enforcement of the mandate for health care workers in November, but later reinstated it in parts of the country.
The decision to send the legal challenges to the Supreme Court came five days after the 6th U.S. Circuit Court of Appeals lifted a stay on the federal vaccine mandate for large employers.
The divisive nature and the ongoing legal challenges of COVID-19 vaccine mandates has created policy-planning challenges for employers. Still, employment law attorneys and advisors say affected businesses should be preparing as though the mandate will take effect given consolidated timelines.
If nothing changes, applicable employers have until January 10, 2022 to comply with the OSHA standard. The court of appeals decision essentially gives OSHA the authority to enforce the COVID-19 vaccine mandate for large employers. January 4, 2022 was the original effective date for the mandate before the stay was issued.
OSHA announced it will not issue citations for noncompliance for its emergency temporary standard (ETS) before January 10 to give employers more time to prepare. The organization also won’t issue noncompliance citations for the testing requirement before February 9, 2022, assuming an employer is demonstrating what OSHA is describing as “reasonable, good faith efforts” to comply with the standard.
Language in the ETS allows for businesses to be fined up to $13,653 per violation and up to $136,532 for each “willful” violation.
The ETS states businesses should gather information on their employees’ COVID-19 vaccination status, but a new Kansas law makes it illegal to gather that information if a person objects to being vaccinated based on religious or strongly held moral beliefs. That means businesses should use caution when questioning the legitimacy of those types of exemption requests.
Ultimately, what ETS compliance approach works for one business may not work for another. Consult your business advisor for guidance on a strategy that works for your business. Syndeo works with industry partners to provide employers updated information when it becomes available.
Meanwhile, a vaccine mandate for federal contractors is on hold for now following a ruling from a federal court judge in Georgia.
About us: As the Heartland’s leading employer services company, Syndeo partners with local business owners to help them minimize risk, improve efficiency and maximize profitability allowing them the freedom to focus on growth and fulfilling their mission. Syndeo fulfills its mission by taking on all of the HR responsibilities for our clients’ workforce, including employee relations, benefits, risk management and payroll.
~Josh Heck is Syndeo’s marketing manager. He can be reached at email@example.com or (316) 440-9940.