Legal challenges to vaccine mandate muddy the waters for employers gearing up to implement rules


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The deadline to demand that U.S. workers be vaccinated or tested weekly for Covid-19 is fast approaching, but uncertainty over how the legal fights over the mandate will unfold has left companies in limbo on the best way to prepare.

Those charged with making sure their businesses comply with the Biden administration’s mandate will need to remain flexible as they take steps to implement the rules that are due to go into effect Jan. 4, according to legal experts and experts. human ressources.

Rules issued by the Occupational Safety and Health Administration require private sector employers with 100 or more workers to ensure their employees are fully immunized or take a weekly Covid-19 test and wear a mask at work. OSHA can impose fines on companies for non-compliance. The OSHA Emergency Temporary Standard can remain in place for six months before it needs to be codified as a permanent standard requiring rule development.

Earlier this month, the US Fifth Circuit Court of Appeals in New Orleans granted an emergency stay barring the application of the rules for the time being, saying they raised “serious statutory and constitutional issues “. The U.S. Sixth Court of Appeals in Cincinnati was randomly selected on November 17 to address legal challenges to the warrant, and on Tuesday the Biden administration filed an urgent petition to the court asking for the immediate reinstatement of the warrant. .

About 50% of organizations surveyed by the Society for Human Resource Management say the uncertainty surrounding legal challenges related to vaccine mandates presents challenges for their implementation. “The others are actually preparing to come into compliance,” said Emily Dickens, SHRM chief of staff, chief government affairs officer and corporate secretary.

Many companies were already implementing different types of vaccine requirements before the publication of the Temporary Emergency Standard, or ETS, and the emergence of the Delta variant may have further accelerated movements in this. direction, said Kevin Troutman, attorney at Fisher. Phillips and a member of the law firm’s Covid-19 task force.

” But certainly [when] the president’s announcement… was released, people were again trying to do whatever they could to understand the requirements and start implementing them, ”Mr. Troutman added.

Companies face a number of implementation challenges, experts say. Companies, for example, must decide how to record and submit mandate compliance, and whether they should strictly require employees to be vaccinated against Covid-19, or allow vaccine-resistant workers to perform weekly tests and mask themselves. at work.

Additionally, despite a provision in the mandate that states employers are not required to provide or pay for testing, companies must decide whether to bear the costs to help retain employees.

“Definitely at this point where we are today, before we get too close to the January vaccination deadline… you should be doing all the back office things you need to do to be in compliance,” said said Brett Coburn, partner at Alston & Bird law firm specializing in employment litigation and advice.

However, it is important to keep an eye on the appeal process. “I wouldn’t make a big financial commitment in terms of testing or anything until we know what’s going to happen,” Coburn said.

No more RISK AND COMPLIANCE LOG

How a business rolls out will depend on its size, said Helene Hechtkopf, partner at the law firm Hoguet Newman Regal & Kenney LLP, specializing in employment and business litigation.

“I’ve heard of companies hiring someone to do the tests once a week. But if you have 100 employees and you have three unvaccinated employees, it doesn’t make sense, ”Ms. Hechtkopf said.

A network of national and local laws further blurs the issue. While federal law takes precedence over state laws, it is essential that businesses know what other issues they may face in the jurisdictions in which they operate.

This is especially true when it comes to who will pay for weekly testing, Ms. Dickens of SHRM said, adding that some cities and states already have their own mandates and that about a third of companies surveyed are already planning to cover testing expenses. .

“And remember for Covid testing, insurance can cover the costs, but there are several pre-Covid laws requiring employers to pay for mandatory medical tests or reimburse their employees for such tests,” Ms. Dickens.

Large private employers must ensure their employees are vaccinated or tested weekly for Covid-19, according to a mandate from the Biden administration that is due to go into effect Jan.4. Sarah Chaney Cambon of the WSJ explains what you need to know about the new rules. Photo: Susan Walsh / Associated Press

Industry experts stress the need for communication between employers and their staff, given the resistance to mandates among many and the lack of clarity on the legal challenges that lie ahead.

“On the one hand, you can’t say anything and you can just shut up and wait and see how things go in court,” Coburn said. “On the other side of that spectrum, you could say, ‘Well, no matter what the courts say, we’re going to implement an ETS-compliant policy’… The middle point is to have some communication. with your employees, but just face the fact that there is uncertainty.

Ultimately, companies need to prepare for all scenarios, experts say.

“I think some companies decided to put the brakes on a bit and see how this would all play out,” Mr. Troutman said. “But we certainly recommended that you, at least as an employer, continue to be prepared. And that means, at least where you are able to do it, to assess… who is vaccinated and who is not in your workplace… If you don’t do much, at least, and let’s say that the ETS is moving ahead or approaching the current time, you would really be behind ball eight.

Write to David Smagalla at [email protected]

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