Employers should 'keep moving forward' on vaccine mandate compliance

Now that a federal appeals court has put President Joe Biden’s COVID-19 vaccine and testing requirements on ice, general counsel are asking whether they should continue working on policies to help their companies comply with the halted mandate, according to labor and employment lawyers. 

Fortunately, the question has a clear answer—unlike many other questions swirling around the Department of Labor’s Occupational Health and Safety Administration’s new 490-page emergency temporary standard. 

“The bottom line is that we’re telling the clients to keep moving forward with complying,” said William Kim, an employment and workplace safety lawyer at Littler Mendelson in Walnut Creek, California. 

“It’s too early to tell what’s going to happen and, depending on what happens, it’s very well possible that, if they [GCs] decide to just take the Fifth Circuit’s [ruling] at face value, they’re going to be losing out on time to comply,” he added. 

The Nov. 4 vaccination and testing requirement from OSHA existed for two days before a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit temporarily blocked the measure, citing potential “grave statutory and constitutional issues with the mandate.”  

Under the now-pending rule, which is under review in the Fifth Circuit, businesses with at least 100 employees would have to craft and enforce a mandatory COVID-19 vaccination policy or come up with a policy that requires unvaccinated employees to undergo weekly testing and wear masks at work.

The mask mandate for unvaccinated employees was slated to take effect on Dec. 5, while the testing requirement deadline was set for Jan. 4.

Scott Hecker, a senior counsel in the workplace safety and environmental practice group at Seyfarth Shaw in Washington, D.C., reported that his email had been “popping constantly” with queries from in-house leaders and other corporate leaders in the wake of the mandate from OSHA.

GCs are examining the privacy implications of tracking, storing and reporting employee vaccination records. Others are wondering how OSHA will penalize businesses that violate the mandate, assuming it survives the Fifth Circuit and other mounting legal challenges. Many companies also are worried about losing employees who are opposed to the vaccination mandate.

“A major issue that’s driving GC involvement in this is the concern that the application of this [mandate] could result in employees simply quitting, if they’re required to be vaccinated,” said labor and employment lawyer Robert Lian Jr., a partner at Akin Gump Strauss Hauer & Feld in Washington, D.C. 

The general counsel for a multinational corporation with factories in U.S. regions where vaccine hesitancy is common told Corporate Counsel in August that the company’s leaders had been quietly considering a vaccine mandate but didn’t want employees to know out of fear that they would panic and walk off.

Now, the big question for GCs at companies covered under the OSHA rule is whether to have a “hard mandate” that requires employees to get vaccinated or go with a “soft mandate” that lets workers skip the shot as long as they get weekly COVID-19 tests, according to Alka Ramchandani-Raj, a shareholder and co-chair of the workplace safety and health practice group at Littler.

So far, based on her discussions with clients, Ramchandani-Raj is seeing a “complete mixed bag” when it comes to companies that are leaning toward requiring vaccinations versus allowing employees to remain unvaccinated and get tested. 

“The employer, and the GC particularly, needs to evaluate what is really going to be effective to minimize hazards in the workplace,” she said. “So it’s really making that determination of what they can implement, what they will effectively be implementing and actually reducing the risk of exposure in the workplace.”

While employers are required to cover the cost of vaccinations, including time off to get the shot and recover from side effects, companies are not required to foot the bill for COVID-19 tests.

But the primary deciding factor, at this point, appears to be whether a company expects to lose a significant amount of workers over a vaccine mandate, Ramchandani-Raj noted.  

“They’re all looking at it from different points of view. That’s what’s critical with these GCs who are evaluating what really is going to work for the workforce,” she said. “The truth is, it could be something different for each and every company.”