How Should the Wellness Industry Respond to the OSHA COVID19 Vaccine Mandate Rules?

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) published Emergency Temporary Standards (ETS) in the Federal Register. These were the long awaited emergency rules that President Biden referenced in his September 9, 2021 press conference. These rules take effect immediately (although there are two different deadlines, discussed below) and apply to employers with 100 or more employees.

Even though the rules are now published, their status remains in limbo. A lot of wellness professionals and organizations, such as health coaches and licensed healthcare providers, wellness vendors and insurance brokers, have been making plans to address the rules. With the rules’ future uncertain, the wellness industry may be wondering what to do. This blog attempts to offer some guidance. But first, we need to summarize the rules.

ETS Summary

Under the ETS, employers have two options: 1) adopt a mandatory vaccination policy where only employees with a disability or sincerely held religious belief are exempt from the vaccine; or 2) adopt a vaccine-optional policy that allows employees who choose not to get vaccinated to instead be subject to COVID19 testing at least weekly and wear a face mask.

A brief summary of the requirements is as follows:

• Employers must obtain acceptable proof of vaccination status of each employee and maintain vaccination status records and a roster of each employee’s status
  • Acceptable proof can include:
    • Immunization records from a provider or pharmacy
    • A copy of the COVID19 Vaccination record card
    • A copy of medical records documenting vaccination
    • Immunization records from public health agencies
    • Any other official documentation that contains type of vaccine administered, dates of administration, name of health professional or clinic administering vaccine
    • Signed and dated statement by employee (if no other record is available) that includes certain language specified in the rule

Employers must treat all records as employee medical records and may not disclose them except as required by law. Employers must also preserve these records while the ETS  is in effect.

• Employers must provide employees up to four hours of paid time off to receive the COVID19 vaccine and paid sick leave to recover from the vaccine’s side effects.
• Employees who are subject to weekly testing and fail to provide weekly test results will be removed from workplace until they provide a test result
• Employers must keep test results confidential as employee medical records and must be preserved while the ETS is in effect
• Employers are not required to pay for any costs related to COVID19 testing
• Employees must promptly notify their employer when they test positive for COVID19 or are diagnosed by a licensed healthcare provider with COVID19.
• Employers must remove employees who test positive with COVID19 from the workplace until certain conditions are met.
• Employees not fully vaccinated must wear face covering when indoors and when occupying a vehicle with another person for work purposes. This requirement does not apply when:
  • Employee is alone in enclosed office
  • Employee is eating/drinking or for identification purposes
  • Employee is wearing a respirator or facemask
  • Employer can show use of face covering is infeasible or creates greater hazard
  • Face coverings must cover nose and mouth
  • Employer must replace when wet, soiled, or damaged
• Employers must:
  • Inform employees about the OSHA rules and employer policies/procedures established to implement the rules
  • Inform employees about COVID19 vaccine efficacy, safety, and benefits of being vaccinated by providing the document “Key Things to Know about COVID19 Vaccines” available at https://www.cdc.gov/coronavirus/2019-ncov-vaccines/keythingstoknow.html.
  • Not discriminate against employees for filing a complaint with OSHA about noncompliance with this rule
  • Inform employees about criminal penalties associated with knowingly supplying false statements or documentation.
  • Report work-related COVID19 fatalities and hospitalizations to OSHA
  • Make COVID19 records and aggregate data available to employees
  • Upon request by OSHA, make its written policies and aggregate numbers available for inspection and copying.

The deadlines for compliance with these standards were December 6, 2021, except the weekly testing requirement did not have to start until January 4, 2022.

The Lawsuits Have Changed the Deadlines and Outlook for the ETS

The same day the ETS were published in the Federal Register, over two dozen lawsuits were filed in courts all over the United States in opposition to the ETS. The first court to rule on one of these lawsuits was the Fifth Circuit Court of Appeals in BST Holdings, LLC v. OSHA. In that case, the court “stayed” the ETS until the court could review those rules further. Specifically, the court was concerned about the ETS exceeding OSHA’s power under the Occupational Health and Safety Act as well as the U.S. Constitution. The court noted that the ETS was both overinclusive (meaning it applied to many more workers than probably necessary) and underinclusive (meaning that it did not apply to employers with fewer than 100 employees, which seemed arbitrary for a virus that presents a “grave danger” to all people, even those outside the workplace). The court also stated that employers would have to spend a lot of time and money to comply with the ETS that may ultimately be found unconstitutional. As a result, the court deemed it necessary to put the ETS on hold until further notice by a different or higher court (such as the US Supreme Court). One thing that the court was not clear about, however, is whether its ruling applies nationwide or just to those states in which it has jurisdiction (Texas, Louisiana, and Mississippi). OSHA gave us an answer on November 17, 2021.

OSHA Has Suspended Work on the COVID19 Vaccine Mandate.

On November 17, 2021 OSHA, through the Department of Labor (DOL), announced that it was suspending activities related to the ETS. Specifically, the DOL wrote on its website:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

What does this mean? It means that the December 6, 2021 and January 4, 2022 deadlines are probably no longer valid. The DOL will vigorously defend the ETS, but that may take some time, and the ultimate fate of the ETS is unknown. So what should wellness professionals and organizations do about the ETS?

Tips for Moving Forward

Most likely we won’t know the ultimate fate of the ETS until the US Supreme Court rules on them. Until then, it is important to note that just because the ETS is on hold does not mean employers may not issue a COVID19 vaccine mandate, unless prohibited by state law. Several states, such as Alabama, Arkansas, Iowa, West Virginia, Tennessee, Texas, Montana, and Florida have passed laws relating to COVID19 vaccine mandates. Indeed, on November 18, 2021, Florida passed a law that prohibits employers from mandating the COVID19 vaccine. Employers must allow employees to opt for periodic testing or PPE as an exemption to getting the vaccine. Employers who violate the state law can face $10,000 fine per employee for small businesses (99 or fewer employees) or $50,000 fine per employee for large businesses. For employers in these states and the wellness professionals and organizations who service them, any COVID19 vaccine policy should pay attention to state laws to ensure the employer’s vaccine policy does not violate the state law.

If an employer operates in a state without a law prohibiting vaccine mandates, then the employer could choose between a COVID19 vaccine mandate policy, a COVID19 vaccine optional policy or do nothing. Wellness professionals and organizations could help employers decide which route is best by surveying employees to determine their preferences. These surveys could be similar to surveys conducted for determining the type and amount of wellness programming and incentives. Because employees would be the source of any complaints about a COVID19 vaccination policy, it is important for employers and wellness providers to understand employee attitudes and expectations regarding the employer’s role in mandating or encouraging the COVID19 vaccine.

Even though the ETS are on hold, employers may find the OSHA sample policies useful as they consider whether and how to implement a COVID19 vaccination policy. Any wellness providers or employers looking for guidance on moving forward can contact the Center for Health and Wellness Law, LLC for assistance.