OSHA regulations likely to be challenged

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As anticipated, the federal Occupational Safety and Health Administration has issued regulations requiring workers at private companies with at least 100 employees to be vaccinated against COVID-19 or get tested weekly, but the rules are expected to be challenged in court.

The OSHA emergency temporary standard for private employers was released Thursday and published Friday in the Federal Register.

Also on Friday, at least 18 states filed lawsuits to stop previously released rules requiring employees of federal contractors to be vaccinated. And many states promised to also challenge the rules released Friday pertaining to private companies.

“We fully expect this temporary standard to be challenged by many states,” said Luke P. Wright, a partner at Harter Secrest & Emery LLP. “It wouldn’t surprise me if, by the end of the day, there are lawsuits filed to seek an injunction from the enforcement of these rules.”

In the meantime, until the outcome of the lawsuits is determined, Wright said companies should move forward with implementing the regulations.

“Employers must act like it’s going to be implemented and move forward like it will because the time frame is so short,” he said.

Kimberly K. Harding, a partner at Nixon Peabody LLP, also said she is advising clients proceed as though the regulations will be implemented.

“The fact of the matter is there are a lot of moving parts here and you don’t want to be caught flat footed,” she said.

Under the new regulations for private employers, unvaccinated worker must wear a mask. Strict enforcement of that rule will start Dec. 5. By Jan. 4, workers must document that they have been vaccinated, or they must be tested for COVID-19 on a weekly basis.

Violating the policies could result in penalties of about $13,000 per violation. Employers who deliberately disregard the rules could be fined upwards of $100,000 per violation, Harding said.

Employers can choose to either require all workers to be vaccinated, or give employees the option to be tested weekly. Employers are not required to pay for testing, if they give workers that option.

Employees of federal contractors are required to be vaccinated under a rule implemented by executive order. That requirement takes effect Dec. 8.

The federal government issued a separate rule on Thursday requiring federal healthcare workers to be vaccinated.

“Of course in New York we’ve already had that Department of Health rule requiring vaccination for health care employees,” Wright said. “I think for many employers it will be a significant burden on several fronts.

“One of the challenging aspects is the timing both from a work and human resources standpoint. Often the end of year and the holiday season is an exceptionally busy time, so to add on compliance with a new requirement like this running through the holiday season I think will be difficult for employers,” Wright added.

Testing and vaccination requirement won’t take effect until just after the holiday season, but that could still create staffing challenges. Therefore, if employers are losing employees because they’re unable or unwilling to comply with the requirements, then that will create issues as well, Wright said.

Harding also said the regulations will be “particularly onerous” for her clients, regardless of size.

“Certainly the more employees you have perhaps the more resources you have, but also the more you have to administer,” she said. “And for smaller companies obviously they don’t have the resources to go to these lengths.”

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