States Promise to Challenge Vaccine-or-Testing Mandate

Allen Smith, J.D. By Allen Smith, J.D. September 22, 2021
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microscopic view of coronavirus

​The attorneys general of 24 states promised to challenge the Biden administration's anticipated mandate that employers with at least 100 employees require workers to be vaccinated against COVID-19 or undergo weekly testing. We've gathered articles on the news from SHRM Online and other outlets.

State vs. Federal Mandates

The COVID-19 virus is not the sort of substance, agent or hazard that the Occupational Safety and Health Act is meant to protect against, wrote the attorneys general in a Sept. 16 letter to President Joe Biden. The Occupational Safety and Health Administration (OSHA) exists to ensure occupational safety, they said. "It deals with work-related hazards, not all hazards one might encounter anywhere in the world. Congress made this clear in empowering OSHA to establish workplace standards not concerning whatever it likes but rather 'employment and places of employment.' "

(Ohio Attorney General)

Arizona Already Is Suing

Arizona Attorney General Mark Brnovich announced Sept. 14 that his office has filed a complaint against the Biden administration over the COVID-19 vaccine mandate for federal employees, federal contractors and private business with at least 100 employees. The lawsuit is the first one to be filed against the Biden administration over the vaccine-or-testing mandate.

(Arizona Attorney General)

90-Day Implementation Timeline Sought

The Retail Industry Leaders Association and the National Retail Federation aren't fighting the expected emergency temporary standard (ETS) that would apply the vaccine-or-testing mandate. Instead, they asked on Sept. 21 for a 90-day implementation timeline of the ETS. The retail groups also sought answers to questions including:

  • Does the employer incur a fine for not getting an employee tested if there is a lack of adequate testing, or would the fines be suspended in that case?
  • How should an employer apply the ETS to minors? In retail, there are thousands of teenage workers who would need parental consent for the vaccine and testing.
  • How is an employee defined? Does it include temporary, seasonal or contingent workers? How should employers apply the new vaccination standard to independent contractors?

(RILA)

ETS Could Take Weeks to Complete

President Biden outlined the plans for the ETS on Sept. 9, but officials haven't yet formally released details on the ETS or provided a target date for its release, other than it could take "weeks" to complete. If companies are allowed 90 days from its release to comply, that likely would mean the ETS wouldn't be enforceable until after the Christmas shopping season.

(Bloomberg Law)

Duration of the ETS

Once it's released, the ETS can remain in place for six months. "After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period," according to law firm Fisher Phillips.

(SHRM Online)

Rule for Federal Employees and Federal Contractors

In addition to the vaccine-or-testing mandate for large private-sector employers, Biden signed an executive order on Sept. 9 requiring most federal employees and federal contractors to get the COVID-19 vaccine, removing the option for them to instead undergo regular testing. Federal employees and contractors will have about 75 days to get fully vaccinated from the time the executive order is signed, officials said. The vaccine requirement will include exemptions for individuals with disabilities and for those who refuse the vaccination on religious grounds.

(SHRM Online)

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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