Employers Weigh Whether to Rescind Vaccination Policies

Allen Smith, J.D. By Allen Smith, J.D. January 28, 2022
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A medical professional administering a COVID-19 vaccine

​Now that the vaccine-or-testing emergency temporary standard (ETS) from the Occupational Safety and Health Administration (OSHA) has been withdrawn, employers that have instituted mandatory vaccination or vaccine-or-testing policies are deciding whether to stay the course or backtrack.

The U.S. Supreme Court recently blocked OSHA's vaccine-or-testing rule, an ETS that applied to employers with at least 100 employees, and OSHA withdrew enforcement of the emergency standard. The court did, however, lift the stay on a vaccination directive for health care providers that are Medicare or Medicaid recipients. And OSHA announced it will move forward with a permanent rule on workplace vaccination or testing, though it didn't announce a timeline.

"Private employers now have to continue to grapple with COVID-19 and decide how to respond to the pandemic without the guidance of OSHA," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas.

Reasons to Backtrack

Some employers are likely to reverse course, "especially if they have a workplace largely opposed to mandatory vaccination policies," said Randi May, an attorney with Hoguet Newman Regal & Kenney in New York City.

"Given the labor shortage in certain industries and part of the nation, some employers aren't in a position to impose a policy that may cause employees to leave," May said. "Additionally, vaccination policies are difficult and time-consuming to enforce, particularly with accommodation and exemption requests."

"Employers could certainly determine moving forward with a vaccine mandate is not in their best interest," said Scott Hecker, an attorney with Seyfarth in Washington, D.C.

Some employers have executives who are opposed to vaccination, said Susan Wiltsie, an attorney with Hunton Andrews Kurth in Washington, D.C.

Employers will need to comply with any state or local laws prohibiting vaccine mandates, noted Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

"Now we are back to the situation we had for the first year and a half of the pandemic where employers must navigate a daily changing landscape of local and state requirements and federal guidance, with some of those laws in direct opposition to COVID-19 risk mitigation workplace policies," Wiltsie said.

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Reasons to Stay the Course

"On the other hand, the employer that instituted mandatory vaccination policies before OSHA even announced the ETS will likely stick to that path," May noted.

The Supreme Court's decision on the OSHA vaccine-or-testing directive "does not impact employers' ability to implement their own vaccine policies," Hecker said. "Many private employers implemented vaccine-and-testing policies prior to the court decision and can continue to do so after it, subject to applicable law," such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. The ADA requires reasonable accommodations for people with disabilities, and Title VII requires religious accommodations, so long as the modifications don't result in an undue hardship on the employer.

Employers "will need to evaluate the needs of their workplaces and workforces in deciding whether to implement a mandate," Hecker said. "Available resources, logistics concerns, costs and corporate culture will all factor into this calculus."

Moreover, health care employers that receive funds from Medicare or Medicaid will have to require vaccinations, as the Centers for Medicare & Medicaid Services rule has no vaccine-or-testing option, Shea said.

It is likely that OSHA will issue standards aimed at specific industries, Shea added. "The Supreme Court, in staying the ETS, said, 'That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID-19.' "

Adjusting Communications About Vaccine Requirements

"If employers communicated that the only reason they were implementing a vaccine mandate or a vaccine-or-test program was to comply with the ETS, they will need to walk that back," Wiltsie said. "But most of our clients did not communicate that their COVID-19 policy only was for ETS compliance."

"The communication supporting the policy can be rooted in the employer's strong interest and duty to maintain a safe workplace for everyone as well as high productivity and morale, which can be jeopardized when the number of positive cases in the workplace rises," May said.

General Duty Clause

OSHA may continue to impose COVID-19 requirements on employers using the general duty clause provision in the Occupational Safety and Health Act, noted Phillip Russell, an attorney with Ogletree Deakins in Tampa, Fla.

"The OSHA general duty clause is akin to a catch-all safety provision, and it requires employers to provide a workplace that is free from recognized hazards," said Jackie Gessner, an attorney with Barnes & Thornburg in Indianapolis. "Where OSHA does not have a specific standard that governs, it can still cite employers for known safety hazards under the general duty clause," she said.

"OSHA has cited employers during the pandemic for failure to adhere to OSHA COVID-19 guidance, CDC [Centers for Disease Control and Prevention] guidance, and other guidance that OSHA claims as applicable," Wiltsie said.

She added that, at a minimum, employers should continue to collect vaccination information from their employees. "This was a legal requirement under the ETS, but even with an ETS stay, that information is necessary to comply with the CDC guidance regarding quarantine and state and local requirements, such as those in California and New York City," Wiltsie said.

"Employers still have to take necessary measures to prevent the spread of COVID-19 in the workplace," Gessner said. "This includes many of the protections employers rolled out in 2020 at the start of the pandemic, including masking, social distancing, and sending home sick or symptomatic employees." She added, "Employers must still develop the measures that best fit their workplaces."

Continuing Battle Against COVID-19

"The country and the world continue to fight COVID-19," Hecker said. "While OSHA may not have the authority to issue an ETS broadly mandating vaccination and testing, we can all take steps to mitigate COVID-19 risk. Certainly, employers will not ignore the ongoing threat of COVID-19 and should evaluate available information to design effective response plans that make sense for their operations, remaining cognizant of applicable state and local laws."

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