Ask the Labor Lawyer #12 - An Update on OSHA's Vaccine Mandates

11/10/2021 by Laura

Last week, OSHA issued its “Emergency Temporary Standard” (ETS), requiring private employers with over 100 employees to implement vaccine mandates.  The ETS does allow companies to offer an alternative to the vaccine, in the form of masking and weekly COVID testing.

What can freedom-loving employers do?

  1. Wait.  Under the terms of the ETS, employers have until December 5 to implement and distribute a mandatory vaccine policy.  Unvaccinated employees will need to start weekly testing by January 4.  There is no need to jump the gun and implement vaccine mandates any earlier than required.

 

  1. Wait longer. Multiple states, businesses, and religious organizations have filed lawsuits challenging the ETS.  In fact, the Fifth Circuit – the Court of Appeals over Texas, Louisiana, and Mississippi – has issued a temporary stay, freezing the OSHA mandate.  Although the White House continues to urge businesses to move forward with vaccine mandates, OSHA has no enforcement power at this moment.  Employers have every right to wait for the current legal challenges to be resolved.

 

  1. Consider a restructure. The ETS defines “100 employees” very broadly, including part-time and remote workers across the country.  Some business owners may be in a position to sell a product line, or split the company into independent affiliates.  I encourage employers to consider all options while OSHA is fighting in court.

 

  1. Encourage employees to go independent. The 100-employee-headcount does not include independent contractors.  Some employees may be able to start their own business, providing the company with consulting services rather than full-time employment.  Note that federal and state agencies have strict requirements for independent contractors, so this option will require some strategic planning.

 

  1. Consider individual employee circumstances. Under the ETS, unvaccinated employees who work alone, work from home, or work exclusively outdoors are exempt from masks and weekly testing.  If you are a business owner, and you know certain employees object to the vaccine, talk to them about their options.  Perhaps they would be willing to work remotely if OSHA starts enforcing the mandate.

 

  1. Join the fight. I encourage business owners to join the legal fight against the ETS if they are able to do so.  Some good resources include the Alliance Defending Freedom and Dhillon Law Group.   These organizations have made their court filings available online, so local attorneys can make similar arguments on behalf of their clients.

 

  1. Just Say No. If enough employers stand up for freedom, OSHA will not have the staff to go around inspecting and issuing fines.  In addition, this would be a political disaster;  Biden’s approval rating has already sunk to a new low.   If litigation fails, perhaps peaceful civil disobedience will force OSHA to back down. 

 

May our nation embrace freedom and forsake Emergency Temporary Standards,

Laura, the Labor Lawyer

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to [email protected]  Such questions may be used for general edification in this column.