Biden Administration Defends Vaccine-or-Testing Policy in Court

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​The U.S. Department of Justice (DOJ) asked a federal appeals court to lift an order temporarily blocking the federal government's vaccine-or-testing policy. The rule would require businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and test for COVID-19 at least weekly.  

Under the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard, unvaccinated workers will be required to wear masks by Dec. 6, according to OSHA, and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.

The 5th U.S. Circuit Court of Appeals temporarily suspended the rule while it considers a challenge brought by state attorneys general and private employers, including locally owned supermarkets, that oppose the directive. The employers argued that OSHA's "claimed authority over [employees'] private lives and vaccine status is an egregious government overreach."

On Nov. 8, the DOJ submitted documents with the appeals court defending the rule. "In the standard, OSHA provided over 100 pages of thoroughly reasoned analysis showing that COVID-19 presents a 'grave danger' to unvaccinated workers, and that the requirements of the standard were 'necessary' to address that grave danger," according to the department. "The standard reflects OSHA's expert judgment that these measures are necessary to mitigate COVID transmission throughout America's workplaces."

We've rounded up resources and articles from SHRM Online and other trusted outlets on the news.

DOJ Requests Consolidation of Cases

In a letter to the 5th Circuit, the DOJ noted that similar challenges to the ETS have been filed with other federal appeals courts. Therefore, the department expects that the cases will be heard by a single court in a consolidated action.

"Congress set forth procedures governing this situation, i.e., when multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order. In such cases, the agency must notify the judicial panel on multidistrict litigation," the DOL said in its letter to the court. The panel will randomly select one court to hear the case, and that court will be authorized to uphold or lift the 5th Circuit's order halting the rule. The department expects the court to be selected by Nov. 16.

(Bloomberg Law)

White House Tells Employers to Proceed with Vaccine-or-Testing Plans

The Biden administration maintains that OSHA's standard is legally sound and that covered employers should move forward with their compliance efforts.

"We think people should not wait," said White House Deputy Press Secretary Karine Jean-Pierre. "We say, do not wait to take actions that will keep your workplace safe. It is important and critical to do, and waiting to get more people vaccinated will lead to more outbreaks and sickness."

(The Hill)

Retail Groups Raise Concerns About Burden on Workplaces

Employers in some industries are concerned about the impact of the vaccine-or-testing rule in a tight labor market. "Over the past 19 months, retailers across the country have taken extraordinary measures to keep their employees, customers and communities safe during the COVID-19 pandemic," said David French, the National Retail Federation's senior vice president for government relations. "It is critical that the rule not cause unnecessary disruption to the economy, exacerbate the pre-existing workforce shortage or saddle retailers, who are already taking considerable steps to keep their employees and customers safe, with needless additional requirements and regulatory burdens."

The Retail Industry Leaders Association said the rule "pits government against private employers instead of working with them to create a safe working environment."

(SHRM Online) and (CNBC)

Large Businesses Show Support for Vaccination Requirements

When the highly contagious delta variant caused COVID-19 cases to surge over the summer, many large businesses—including CVS Health, Facebook, Lyft, major airlines and health care facilities—began to mandate vaccination for all or some of their workers. Courts have generally upheld such policies.  

(NBC News) and (SHRM Online)

Remote-Worker Exemption

Notably, OSHA has said that employees who report to workplaces where no other people are present do not face grave danger from occupational exposure to COVID-19 because such exposure requires the presence of other people. For those who work exclusively from their homes or from workplaces where no other co-workers or customers are present, such as a remote worksite, the chances of being exposed to the coronavirus through a work activity are negligible. Therefore, OSHA exempted from the ETS those workers who do not come into contact with others for work purposes.

(SHRM Online)

For continuing coverage of the new vaccine-or-testing policy, visit SHRM's COVID-19 Vaccination Resources Page

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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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