January 10, 2022 Is The Date

UPDATE 12.21.21

The federal court responsible for determining the fate of the OSHA vaccination / weekly testing mandate for the nation as a whole has lifted the temporary stay against its implementation. The fight is not over as the decision is expected to be appealed immediately to the United States Supreme Court.

What are covered employers supposed to do in the interim? Will OSHA extend the deadlines contained in the standard, or will covered employees who are not fully vaccinated have to begin weekly testing until becoming fully vaccinated if they choose?

It is our hope that covered employers followed the suggestion that they plan for implementation but delay it until the courts resolved the conflict. If the United States Supreme Court does not stay enforcement employer implementation will need to begin. Some questions your plan needs to address:

How will you evaluate and address conflicting state laws?
How will you confirm vaccination status?
How will you allow employees to request a medical or religious accommodation?
How will you evaluate the legitimacy of accommodation requests?
Most importantly, for employees who are not fully vaccinated, or to whom you have granted a vaccination accommodation against vaccination, how will you handle the weekly testing requirement?
Evaluating medical or religious accommodation requests against testing.
Employer or employee cost?
Paid time off, unpaid time off, obtain testing when off work, or employer arrangements for on-site testing?
Confirming the validity of test results and recording test results

We have summarized the OSHA ETS requirements in past Updates, but simply put, it’s complicated.

OSHA penalties are high and can be in excess of $13,000 for EACH violation. Because of these many questions mentioned above, we do not believe there is a “one-size-fits-all” plan. Talk with your employment attorney about your operations and how the options the ETS contains can be best utilized to minimize disruption of your operations.

Then, once again, sit back and see what the court system does. We will tell you immediately when the decision is made.

Originally Published December 17, 2022:

As you probably learned, there has been an unexpected movement in the fight over the OSHA Emergency Temporary Standard for COVID-19 vaccination. Contrary to expectations, on Friday night the federal court responsible for determining the fate of the OSHA vaccination / weekly testing mandate for the nation as a whole issued an order lifting the temporary stay against its implementation. The fight is not over as the decision is expected to be appealed immediately to the United States Supreme Court. No one knows with any degree of certainty whether the Supreme Court will enter a stay, and I am not sufficiently foolish to offer an opinion. So, what are covered employers supposed to do in the interim? OSHA has dictated the course.

OSHA extended the deadline for vaccination to January 10, 2022 (from January 4, 2022 – only six days despite a stay of five weeks). If an employee has not already been vaccinated or begun the vaccination process, he or she may not be “fully vaccinated” by the deadline.

Johnson & Johnson – No later than January 4, 2022.
Pfizer – 1^st dose by December 14, 2021, 2^nd dose 21 days later. If 2^nd dose is not received by January 4, 2022, weekly testing until 2^nd dose is received.
Moderna – 1^st dose on or before December 7, 2021, 2^nd dose 28 days later. If 2^nd dose is not received by January 4, 2022, weekly testing until 2^nd dose is received.

An employee can become “fully vaccinated” with the Johnson & Johnson vaccine by the January 10, 2022 deadline. However, unless an employee has already obtained the first dose of the Pfizer or Moderna vaccine, the employee cannot be considered “fully vaccinated” by January 10, 2022.

With the short time period between now and January 10, 2022, we suggest that a covered employer commence implementation of its compliance plan.

Compliance raises the question of whether a covered employer has to terminate or bar a non-vaccinated employee from the workplace on January 10, 2022.

No. The OSHA ETS requires vaccination OR weekly testing. A non-vaccinated employee can continue working by undergoing weekly testing.

What about conflicting State laws?

With the alternative of weekly testing, there probably will not be a total conflict between federal and state law.

Only a few states restrict mandatory vaccination policies:

Florida: Private employers may not impose vaccination requirements without also providing five exemptions: (i) medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; (ii) religious reasons; (iii) COVID-19 immunity; (iv) mutual agreement to provide periodic testing (paid for by employer); and (v) mutual agreement to use employer-provided personal protective equipment. The employer must grant an exemption for any of these reasons on receipt of a state-approved form.
- A conflict can be avoided.
  - Employees can receive the vaccine voluntarily.
  - An employee may request an exemption. (The OSHA ETS does not recognize exemptions for COVID-19 immunity and protective equipment).
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevents a conflict.

Iowa: Employers that mandate COVID-19 vaccinations must waive the requirement at an employee’s request for health or religious reasons.
- A conflict does not exist.
  - The required exemptions in this statute are the same recognized by federal law
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevents a conflict.

Montana: An individual may not be required to receive any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials.
- A conflict can be avoided.
  - Employees can receive the vaccine voluntarily.
  - An employee may request an exemption recognized by federal law (medical and religious).
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevents a conflict.

Tennessee: Private employers shall not compel or take an adverse action to compel an employee to provide proof of vaccination if an employee objects to vaccination for any reason.
- A conflict can be avoided.
  - Employees can receive the vaccine voluntarily.
  - An employee may request an exemption recognized by federal law (medical and religious).
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevents a conflict.

Texas: No entity can compel receipt of a COVID-19 vaccine by any employee who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.
- A conflict can be avoided.
  - Employees can receive the vaccine voluntarily.
  - An employee may request an exemption recognized by federal law (medical and religious).
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevents a conflict.

Utah: An employer must waive vaccination mandate if an employee submits a statement objecting to vaccination based on health or religious or personal beliefs.
- A conflict can be avoided.
  - Employees can receive the vaccine voluntarily.
  - An employee may request an exemption recognized by federal law (medical and religious. Federal law does not recognize a “personal belief exemption”).
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevents a conflict.

West Virginia: Requires private and public employers to grant an employee’s certified request for a medical or religious based exemption from mandatory vaccination policy.
- A conflict does not exist.
  - The required exemptions in this statute are the same recognized by recognized by federal law.
  - For the employees who refuse vaccination, or fail to qualify for an exemption, a mandatory weekly testing policy prevent s a conflict.

How will an employer confirm vaccination status to comply with federal law?

The OSHA ETS requires proof of vaccination. (Call to learn alternatives to vaccination cards)

Some states bar an employer from requiring proof of vaccination, or inquiries regarding vaccination status.

To avoid a conflict, an employer may require weekly testing if an employee does not submit proof of vaccination.

(Some states may consider this strategy a constructive or coercive violation of state law. However, ultimately, federal law will trump a conflicting state law and a state violation most likely is less costly than an OSHA violation).

Some employees will request exemptions/accommodation against weekly testing.

How will you allow employees to request a medical or religious accommodation?
How will you evaluate the legitimacy of medical or religious accommodation requests?

We have summarized the OSHA ETS requirements and state law restrictions in a previous post, but simply put, it’s complicated. OSHA penalties are high and can be in excess of $13,000 for EACH violation. Because of these many questions mentioned above, we do not believe there is a “one-size-fits-all” plan. Talk with your employment attorney about your operations and how the alternatives the OSHA ETS contains can be best utilized to minimize disruption of your operations.

Currently, covered employers have 20 days for compliance. The Supreme Court may grant a reprieve but given the short time period facing covered employers, it is dangerous to wait. We recommend that covered employers commence implementing their compliance plan. Better to have it in place and then not use it than not having it at all.

About Christian & Small

Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast, and the nation with clients ranging from individuals and closely-held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective, and efficient solutions for clients. With offices in Birmingham, metro-Jackson, Mississippi, and the Alabama Gulf Coast, Christian & Small focuses on the areas of litigation and business, is a member of the International Society of Primerus Law Firms, and is the only Alabama-based member firm in the Leadership Council on Legal Diversity. Our corporate social responsibility program is focused on education, and diversity is one of Christian & Small’s core values.

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