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Fierce backlash ensures fight against Biden vaccine mandate


The Occupational Safety and Health Administration last week published its much-anticipated and already highly contested emergency temporary standard requiring employers with 100 or more employees to either mandate vaccinations for their workforce or enforce weekly testing.

The 500-page mandate was met with an expected backlash, and lawsuits were filed the day it was published. The first, from a coalition of states and enterprises that was filed in the 8th U.S. Circuit Court of Appeals, argued that “the power to compel vaccinations” rests with the states, and that the ETS goes “beyond workplace safety and into public health policy,” exceeding OSHA’s statutory authority.

As of Tuesday evening, 27 states had filed suit, and an order from a federal appeals court in Louisiana had blocked the ETS from taking effect. As the disputes play out, some employment attorneys fear the added confusion for employers will subject more of them to penalties for failing to comply by the Jan. 4 enforcement date.

“OSHA will most likely have little patience with non-compliant employers who claim they held off implementing the mandate-or-test rule while awaiting a final court ruling,” attorneys at Atlanta-based Fisher & Phillips LLP said in a statement, “and the agency has significant weapons at its disposal in the form of citations and penalties.”

The mandate puts an enormous burden on employers, particularly businesses that have multiple locations, said  Randi Winter, partner at Spencer Fane LLP in Kansas City, Missouri. She pointed to litigation filed by independent parties, including a suit filed by two Wisconsin employers that depicts the ETS as a “lose-lose situation for employers.”

On the one hand, they face fines if they don’t comply, but they also risk losing employees if they enforce the mandate, Ms. Winter said.

Opponents also contend the mandate violates employees’ individual rights and liberties, though workers can file for exemptions based on medical or religious reasons.

Both types of exemptions are subject to reasonable accommodations if found valid – a potential loophole the ETS addresses by requiring ample proof of evidence.

“There is expectation that there will be people with newfound religions who are citing religious objections and that some organizations might get around this by just letting everybody self-declare a religious objection,” said Gary Pearce, chief risk architect at Aclaimant in Chicago.

“The ETS is trying to address that by getting very particular in the way of the nature of the declaration, including cracking down on those who say they don't have their documentation. Those who seek those exemptions will still have to go through a complicated weekly testing regimen.”

Testing guidelines prohibit self-service testing and free employers from covering test costs. Mr. Pearce noted there is an administrative burden in collecting and maintaining records for OSHA and for justifying their determinations regarding accommodations.

“OSHA's clear preference is that there not be a testing option,” he said. “The countervailing argument is that the government, given the language of this requirement and its public announcements, is trying to stack the deck as hard as it can to make life difficult for those who don't want to succumb to the vaccine requirements.

“They're going to have the back of employers who are exercising reasonable discretion in denying what appear to be frivolous exemption demands.”

For the 27 states fighting the mandate in court, “another important aspect,” Mr. Pearce said, is that roughly half are governed by state-specific OSHA plans, which under the ETS, must be at least as effective as the federal plan.

“Every one of those …  states needs to come out with its rules, and that's going to involve some delay,” he said, noting there will be some overlap between state mandates, all of which must meet a certain federal standard, setting the course for a “slow walk” toward compliance.

Enforcing the mandate will be difficult, though, as experts say OSHA doesn’t have the resources to go after all businesses that don’t comply.

Employers that get caught will be those that “flaunt the rules” and are reported by their own employees, Mr. Pearce said.