Eye On The Law

Eye on the Law Legal and Practical Considerations for Employers Regarding COVID-19 Vaccinations

As we enter the third year of the COVID-19 pandemic, many employers and employees are trying to return to “normal,” including returning to the office. Questions often then arise from employers as far as what they can do to protect their employees, customers, business, and family as we interact face-to-face more often. This has become challenging for employers as emergency rules and judicial decisions are being made on a semi-regular basis regarding vaccination requirements.

In September of 2021, President Biden announced a directive for the Occupational Safety and Health Administration (OSHA) to issue an emergency regulation requiring businesses with at least 100 employees to mandate workers receive the COVID-19 vaccine or be tested weekly. Emergency rules are fast tracked, meaning OSHA may promulgate rules without providing notice or opportunity for public comment or hearings. Emergency rules are typically in place for about six months, at which point they are withdrawn, become permanent, or are litigated.

On November 5, 2021, OSHA published the vaccination emergency rule, which required employers to (1) develop a mandatory COVID-19 vaccination policy, by either mandating vaccines or allowing a choice between vaccination and weekly testing with face mask requirement; (2) determine vaccination status of each employee, obtain proof of vaccination status, and maintain records of vaccination status; (3) provide reasonable paid time off for employees to receive a vaccine and recover; and (4) report work-related COVID-19 fatalities to OSHA within eight hours, and hospitalizations within 24 hours. Under the emergency rule, employers were given 30-60 days to comply, with the penalty for noncompliance being about $14,000 for each single violation, or up to $135,000 for a willful violation.

Just a week later, the federal Court of Appeals granted a motion to stay the emergency rule, which halted the implementation of the emergency administrative proceedings. However, on December 17, 2021, in a turn of events, the Sixth Circuit Federal Court of Appeals, in a 2-1 decision, lifted the stay, thereby reinstating the vaccination rule. OSHA, in a press release, stated the agency will not begin enforcing the vaccination emergency rule until January 10, 2022, so long as employers are exercising reasonable, good faith efforts to come into compliance with the standard. Many of the plaintiffs challenging the vaccination emergency rule have already asked the Supreme Court to intervene; therefore, this issue will continue to unfold in the coming weeks.

The Supreme Court is also considering suits from healthcare workers who are combatting a similar vaccine mandate that the Biden Administration tailored towards those in the medical field. The Centers for Medicare & Medicaid Services (CMS) created an emergency rule in November of 2021 that requires healthcare workers who work at facilities that receive Medicare and Medicaid funding be vaccinated against COVID-19. Similar to the OSHA rule, the CMS rule is currently being litigated. Both emergency rules are expected to be reviewed by the Supreme Court in early January of 2022.

Given the on-again, off-again nature of the vaccination emergency rule process, many private employers are uncertain what steps they should or must take to protect their employees and businesses. From a best practices standpoint, private employers with more than 100 employees should take steps to conform to the emergency rule now, rather than waiting to see how the United States Supreme Court rules in the future. Moreover, Wisconsin employers are legally permitted to encourage their employees to get vaccinated. Therefore, many employers have instead chosen to encourage their employees to get vaccinated, regardless of the ongoing concerns surrounding the federal vaccine mandate. Methods of encouraging employees to receive the vaccine include offering vaccination clinics onsite; allowing employees to get vaccinated during work hours; and providing transportation to and from vaccine sites.

Axley will continue to provide updates as the situation develops. If you have any questions about the vaccine mandate or insurance related questions, you should contact the PIAW’s Legal Hotline at (844) 672-1221.