Businesses that employ 100 or more people will have to either require workers to get a COVID-19 vaccine or get tested weekly beginning Jan. 4, the Biden administration has announced.
The federal Occupational Safety and Health Administration today issued a temporary emergency rule that implements a vaccine mandate that President Biden first rolled out in September. The emergency rule takes effect Friday and allows OSHA to fine companies more than $136,532 for a willful violation and nearly $13,653 per individual violation.
Employers will have to determine the vaccination status of each employee in the workplace. Exceptions to the emergency rule include employees who work at home or exclusively outdoors, as well as workers “who do not report to a workplace where other individuals such as coworkers or customers are present,” according to the Grand Rapids Area Chamber of Commerce.
Beginning Dec. 5, employers also must give workers up to four hours of paid time off to get a vaccine, and paid leave if they feel any side effects from a vaccine. Employees who opt to not get vaccinated would have to wear a face mask at work indoors or in a vehicle with another person. Employers would not have to pay to have unvaccinated workers tested.
“After two months of waiting and wondering, this complicated mandate puts job providers in an incredibly difficult position as they work to manage significant talent and supply chain issues during a hectic fourth quarter,” Andy Johnston, vice president of government affairs for the Grand Rapids Chamber, said in a statement. “While we object to this government mandate on free enterprise, we will work to help employers and employees through this and call on state and federal regulators to be flexible and apply common sense whenever possible.”
Legal challenges likely
In effect for six months as OSHA prepares a final, permanent regulation, the 490-page emergency rule is sure to get tested in court.
Several business associations and attorneys general in more than 20 states have promised to challenge the emergency rule.
“You can rest assured this will absolutely be challenged in court,” Small Business Association of Michigan President Brian Calley said in a Thursday afternoon briefing. “Once it’s filed with the Federal Register (on Friday), you will immediately see state attorneys general and other parties that will file all over the country.”
SBAM on Thursday posted an FAQ section on its website that noted it “opposes all government mandates that dictate the terms of employment between employers and employers.”
Attorneys from Warner Norcross + Judd LLP wrote in an email to clients that the emergency rule “will face substantial legal challenges and, as a result, could be further delayed or rejected.”
Marshall Grate, a labor and employment attorney for the Grand Rapids office of Clark Hill PLC, believes courts will uphold the emergency rule. Citing court precedents going back decades, plus medical and religious exemptions built into the emergency rule, Grate believes the federal government would prevail in the coming legal challenges.
“I think it’s highly likely, if there’s a legal challenge, that it would be rejected by the courts, based on solid legal precedent that goes back more than 100 years,” he said. “From a legal standpoint, the administration is probably within solid grounds to issue a mandate for vaccinations, and the courts are most likely to uphold that mandate, especially where they made exemptions for people with medical issues” and religious reasons.
A history buff, Grate notes that while vaccinations can be controversial, historical precedence goes back to the American Revolution when George Washington in 1777 required soldiers joining the Continental Army to get a vaccination available then against smallpox.