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Vaccine requirement lacks detail

OSHA must develop rules to clarify

By: Bennett Loudon//September 15, 2021

Vaccine requirement lacks detail

OSHA must develop rules to clarify

By: Bennett Loudon//September 15, 2021//

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President Joe Biden’s announcement last week that the federal government will require all workers at large companies to get the COVD-19 vaccine raised lots of questions but provided few answers.

Biden said all companies with at least 100 workers will have to make sure all of their employees are fully vaccinated, or take weekly COVID tests. Violating the rule could trigger a $14,000 fine per worker, per day.

“The devil, I’m sure, is in the details, but we don’t have any of the details,” said Kimberly Harding, a labor and employment attorney and partner at Nixon Peabody LLP.

Harding
Harding

“When will the order be issued? How much detail will be provided? Will employers have to pay for testing? How will it affect remote workers? How will the definition of ‘fully vaccinated’ be affected by the booster discussion? Will there be clearer guidance on how to apply the religious exemption?” Harding asked.

Not only are there many unanswered questions about the rules to be developed by the Occupational Safety and Health Administration, but it remains to be seen whether the order can survive a court challenge.

Arizona’s attorney general has already filed a lawsuit challenging what he and others call a mandate. The order allows people to opt for regular testing rather than getting the vaccine, so the use of “mandate” in this case is arguable.

“The federal government cannot force people to get the COVID-19 vaccine. The Biden Administration is once again flouting our laws and precedents to push their radical agenda,” Arizona AG Mark Brnovich said in a statement.

Amanda Smith, a senior associate at Tully Rinckey PLLC in Buffalo, who specializes in federal employment law, said there has only been one other federally required vaccine, in cases where workers are exposed to hepatitis B. Employers must offer to vaccinate workers, but workers can decline.

Smith
Smith

“It seems like we’re constantly dealing with the COVID-19 pandemic and constantly going into new areas where the federal government has never touched before,” Smith said.

OSHA is using an expedited process to develop the rules on the vaccine requirement and there will be no public comment because it’s considered an emergency situation.

“You’re going to start to see challenges for the constitutionality of it, whether or not the federal government is overstepping its boundaries and that’s going to process through the courts,” Smith said.

Harding is hoping to see some of the rules from OSHA within the next few weeks.

“There is a balance between trying to make sure the order is comprehensive and that it will be upheld in the courts with also the fact that it’s an emergency temporary standard,” Harding said.

“If they don’t issue it promptly, how emergent could the situation be?” she asked.

Harding said many of her clients were already requiring vaccinations and testing.

“The vast majority of my clients are waiting to see what the order looks like before they form any official opinions and others are just outright opposed to the concept of the federal government issuing such a mandate,” she said.

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