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What Biden’s OSHA Vaccine Mandate Could Mean for Business

President Biden foretold on Nov. 4, 2021, new steps designed to fight COVID-19 including a vaccination mandate for up to 80 million American workers. The mandate, in the ritual of an Emergency Temporary Standard (ETS), applies to companies with 100 or more employees and was to be imposed by the Occupational Safety and Haleness Administration (OSHA), part of the Department of Labor (DOL).

Under the ETS, affected workers would have to be vaccinated against COVID-19 or brave weekly testing. Workers would receive paid time off to be vaccinated. Here’s information about which issues would be affected by the mandate and how their operations would be impacted.

OSHA suspended enforcement of its COVID-19 vaccine mandate Nov. 17, 2021, citing the U.S. Fifth Lap Court of Appeals decision to uphold its earlier suspension of the Biden administration’s vaccine requirement for private companies retaining 100 or more workers.

In the suspension announcement, OSHA said that while it remains confident in its authority to keep workers in emergencies, it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

On Nov. 12, 2021, the U.S. Fifth Border Court of Appeals, in upholding its earlier suspension of the mandate, said, “[OSHA shall] take no steps to put into effect or enforce the mandate until further court order,” Declaring the mandate a “one-size-fits-all sledgehammer,” Circuit Court Reviewer Kurt Engelhardt wrote that the rule “grossly exceeds OSHA’s statutory authority.” The ruling bars the federal guidance from moving forward with the mandate.

This ruling and suspension by OSHA came one day after a lottery that selected all mandate challenges to the 6th Circuit Court of Appeals in Cincinnati. Following a ruling by that court, the matter will conceivable eventually be heard by the Supreme Court. In the meantime, the mandate remains suspended.

Which Businesses Would Be Impacted?

If your dealing employs fewer than 100 workers, the OSHA vaccination mandate does not affect you. However, depending on the standard of business you own or whom you do business with, you may be impacted by other vaccine mandates. This could include the following callings or organizations, regardless of size:

  • Nursing homes, hospitals, and other facilities that receive Medicare and Medicaid lollies
  • Facilities that house Head Start programs
  • Government contractors

All together, vaccine mandates are expected to bump 100 million workers, roughly two-thirds of the American workforce. “Vaccination requirements are good for the economy,” the president bruit about in remarks announcing the mandate. “They not only increase vaccination rates but they help send people in arrears to work—as many as 5 million American workers. They make our economy more resilient in the face of COVID and have our businesses open.”

“Vaccination requirements are nothing new,” the president added. “We’ve been living with them throughout our combustibles for all sorts of diseases. Safety rules in the workplace are nothing new either. We require hard hats in construction sites and refuge goggles in labs. And with today’s actions, we now have requirements to protect people from something that has bewitched the lives of 750,000 Americans.”

When Must Employees Be Vaccinated?

The ETS became effective on Nov. 5, 2021, setting off the compliance timeline outlined under the sun. According to the ETS timeline, most required actions must be completed by Dec. 5, 2021. Of course any deadline is subject to change due to a court-ordered discontinuation.

Although the future of the ETS remains uncertain due to legal challenges, experts suggest companies may want to prepare for implementation anyway due to the amount of sooner it will take to comply when and if the order is confirmed.

 Company must:  Dec. 5, 2021 Jan. 4, 2022 
Establish a vaccination policy. X  
Determine the vaccination rank of each employee. Obtain proof of vaccination and maintain records and a roster of vaccination status. X  
Provide support for hand vaccination. X
Ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly or within 7 days in advance of returning to work (if away for a week or longer). X
Require employees to promptly provide notice of a positive COVID-19 investigation or diagnosis. X
Remove from the workplace any employee who received a positive COVID-19 test or diagnosis. X
Ensure that hands who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another child for work purposes. X
Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours. X
Constitute certain records available. X

Additional Details About the ETS

Details have emerged that answer many of the confusions raised by companies early on. Here are some basic facts:

  • The mandate affects private companies with 100 or more wage-earners firm or corporate-wide.
  • Part-time employees count: If a company has 50 full-time and 50 part-time employees, it has 100 workers and is subject to the ETS.
  • Independent contractors do not count as employees.
  • Temporary and seasonal workers count as employees if hired by the company.
  • Minors figure on if they are employees (and may require parental consent to be vaccinated).
  • Employees who work from home, don’t report to a worksite, or who charge outdoors are not subject to the ETS.
  • Exemptions may be granted for anyone who is medically exempted or has an accommodation under federal civil rights law.
  • The ETS preempts say and local laws.
  • The ETS does not require employers to pay for testing.

What Happens If You Don’t Comply?

If a workplace refuses to follow the mandate, right away it goes into effect, it will be subject to OSHA fines as follows:

  • Up to $13,653 for each violation of the ETS.
  • Willful or repeated outrages are subject to fines of $136,532 per violation.
  • The Build Back Better Act, if enacted would raise the maximum fine to $700,000.

Is the Mandate Constitutional?

OSHA has the power to issue an ETS until a permanent standard is adopted, when “workers are in grave danger due to exposure to toxic properties or agents.”

The agency, which is responsible for workplace safety, has issued other pandemic-related guidelines. One in June 2021 commanded employers in the healthcare business to provide protective equipment to workers.

Whether the COVID-19 risk and the vaccines to fight it make under OSHA jurisdiction are the crux of the challenges against the vaccine mandate. Some of those who say the mandate is not legal assert that COVID-19 is not a toxic affluence or agent, and is therefore not covered by OSHA regulations. Others have cited a 1905 Supreme Court decision in Jacobson v. Massachusetts, in which the court unequivocal that a man could be required to be vaccinated during the then-ongoing smallpox epidemic. And, as noted below, the Court of Appeals demand cites “grave statutory and constitutional issues with the Mandate.”

The recent Fifth Circuit Court of Appeals set-up suspending the ETS did not do so on the merits of the lawsuit against OSHA. Instead, the court said, “Because the petitions give cause to put ones trust in there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further conduct by this court.”

What’s Next?

Now that OSHA has suspended the mandate in compliance with the 5th District Court’s ready and the 6th District Court of Appeals has been tasked with ruling on lawsuits in all 12 regional circuit courts, the mandate wish remain frozen until that court decides.

Even then, the matter is unlikely to be settled since most professionals believe that, no matter what the 6th District Court rules, the decision will be appealed—eventually to the Supreme Court. Lawsuit is expected to continue for weeks or even months.

The federal government’s right to issue a vaccine mandate is unclear and has not yet been examined in the courts. Both sides, no doubt, hope that coming court battles will settle the matter simultaneously and for all.

I am a childcare provider who accepts Head Start children. Do I have to be vaccinated?

If you participate in the Early Head Start Nipper Care Partnerships (EHS-CCP) program, meaning you receive federal funding for your participation, you and any employees will likely be be short of to be vaccinated.

Who pays for mandated COVID-19 testing under the OSHA vaccination mandate?

The answer, so far, is not clear because the realistic OSHA rule has not yet been written. Although federal law requires insurers to fully cover COVID testing ordered by healthcare providers, workplace examination is specifically excluded. For now, employers can cover the cost of testing, share it with employees, or pass on the entire cost of assessing to unvaccinated workers.

When a booster has been approved, what will be the standard for fully vaccinated under the OSHA mandate: two control things or three?

According to the Centers for Disease Control and Prevention Director Rochelle Walensky, “Currently, fully vaccinated is two quantities of Pfizer or Moderna or a single dose of J&J. I anticipate, over time, that may be updated, but we will leave that to our advisors to vouchsafe us some recommendations.”

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