COVID Vaccination Mandate & Lawsuits

November 10, 2021

On Nov. 4, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) that would require employers with 100 or more employees to require employees are either vaccinated or submit to regular COVID-19 tests. As the vaccination mandate moves forward, more lawsuits are being filed and NSBA continues to monitor the situation. Please read below for details.

OSHA Vaccine Rule

OSHA has initiated a 30-day public comment period beginning on Nov. 5 and is inviting comments on any aspect of the ETS and how to proceed with the rulemaking. The COVID-19 Vaccination and Testing ETS requires covered employers—by Jan. 4, 2022—to establish, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect to undergo regular COVID-19 testing and wear a face covering at work instead of vaccination.

All covered employers are required by the ETS to bear the cost of providing up to four hours of paid time and reasonable paid sick leave needed to support vaccination, but where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings. Some employees may be entitled to reasonable accommodation from their employer, in certain cases where they opt out of vaccinations due to a medical condition or sincerely held religious belief.

Additionally, the ETS requires employers to remove employees with COVID-19 from the workplace until they meet return to work criteria, provide certain information to employees, and report work-related COVID-19 fatalities to OSHA within eight hours and work-related in-patient hospitalizations to OSHA within 24 hours.

The full text of the ETS is available at www.osha.gov/coronavirus/ets2 and at www.regulations.gov

OSHA is providing briefings of the standard which include Q&A sessions. The next session will be Monday, Nov. 15, 11-11:45am ET – RSVP here, or you can download a prerecorded webinar here if you are unable to attend the briefings.

Federal Court Blocks Vaccination Order

A federal court in Louisiana has blocked the Biden administration’s mandate that millions of workers get vaccinated against Covid-19 or be tested weekly, ruling in a suit filed by several states, companies and conservative religious groups. The states of Texas, Louisiana, Mississippi, South Carolina, and Utah are among the plaintiffs.

More than two dozen states have filed multiple legal challenges in federal court against the Biden administration’s vaccinate-or-test mandate for private businesses, arguing that OSHA does not have the authority to issue the requirements.

The four lawsuits were filed by groups of 26 states in the 8th Circuit, 11th Circuit, 6th Circuit, and 5th Circuit over the past few days. They seek to nullify the aforementioned ETS released on Nov. 4 that requires companies with more than 100 employees to verify their workers are vaccinated or have unvaccinated workers wear masks and submit to weekly Covid-19 testing.

Broadly, the lawsuits argue that the Department of Labor lacks the authority to issue a rule and that it did not follow the proper procedure in issuing the ETS. The suit led by Florida, Georgia and Alabama in the 11th Circuit also argues the requirements conflict with the First Amendment and the Religious Freedom Restoration Act.

Other Legal Challenges

In September, 24 state attorneys general announced their intent to sue the federal government over the impending vaccination mandate. In their letter to the president, the attorneys general called the plan “disastrous and counterproductive,” arguing that “at least some Americans will simply leave the job market instead of complying.”

Montana’s state legislature passed a law earlier this year prohibiting employers from denying a person employment opportunities, barring a person from employment or otherwise discriminating against a person on the basis of vaccination status.

Last month, Texas Gov. Greg Abbott issued an executive order limiting vaccine mandates, including for private employers. And in Alaska, Gov. Mike Dunleavy issued an administrative order providing that “no state agency shall participate in, or use state funds or personnel, to further a federal vaccine mandate for employers.”

NSBA Statement on ETS

Small businesses desperately want to move past the pandemic and NSBA is strongly encouraging everyone, owners and employers, to get vaccinated. Most NSBA members aren’t impacted by President Biden’s mandate, given that most small businesses fall under the 100-employee threshold and therefore aren’t impacted—unless they’re federal contractors. However some of those who ARE impacted have expressed frustration with the mandate. One of the overarching concerns NSBA has with any new rule is the unintended consequences, and this ETS could exacerbate existing labor shortages and weekly testing could become very costly.