VACCINATION MANDATES: BLOG SERIES PART 2

In our efforts to keep business and employers informed on the OSHA ETS and CMS Mandate, we continue to provide answers to questions related to the COVID-19 vaccination mandates.  Today we will focus on what happened over the weekend, if any employees are excluded from the mandates, and what employers should initially do to prepare for the pending requirements.

A stay was issued in the 5th Circuit, what does that mean?

Surprise, surprise, the OSHA COVID-19 vaccination ETS was challenged in a variety of courts.  On November 5, 2021, several parties filed a lawsuit with the United States Court of Appeals for the Fifth Circuit (there are similar suits in other jurisdictions, but this one acted first).  The plaintiffs in the lawsuit filed a petition which requested the Court to find that the ETS exceeded the authority provided to OSHA and/or is unconstitutional as drafted.   The Fifth Circuit almost immediately issued an order staying the implementation of the ETS and setting forth a briefing scheduled (the government must respond by 5:00 p.m. tonight (November 8, 2021) and the plaintiffs must respond by 5:00 p.m. on November 9, 2021. 

What does this mean?  As of the time of this post, OSHA is stayed from enforcing the ETS.  This is somewhat irrelevant right now, as the ETS technically does not require an employer to take action until December 5, 2021.  We will likely have significant additional information prior to that time.  Accordingly, employers should continue to prepare for the ETS as if it will take effect as drafted until a final determination is made by the courts.

We have 100 employees, are all of the required to adhere the ETS requirements?

There are certain exceptions to the ETS requirements.  We will discuss in another post exemptions to mandatory vaccination requirements (religious or medical), this issue focuses on who the ETS generally excludes from the mandatory testing or vaccination requirements.

The ETS indicates employees who do not work in an office, do not meet with customers, or work primarily outside are not required to adhere to the testing or vaccination requirements.  To be clear, such individuals still count towards the 100 employee threshold, they are just not required to get vaccinated or tested on a weekly basis.

For example, if you run a landscaping company and all of your employees work outside on a daily basis, those individuals would not have to be tested or vaccinated.  Conversely, if you run a company who has employees that go to a client’s place of business (or home) those individuals would have to comply with the ETS requirements.

What should employers do to prepare?

The ETS requires covered employers to obtain information on an employee’s vaccination status and supporting documentation.  As such, the first step an employer should take (if it has not already done so) is to provide employees with a form which requires the individual to disclose his/her vaccination status and provide supporting documentation.  This should be done as soon as possible to ensure that such information is obtained by an employer so that it can make an informed decision on how to proceed with ETS compliance.  To be clear, an employer is not violating any provision of HIPAA by requesting and obtaining this information.  Employers must, however, store any information separate from an employee’s personnel file and maintain it in a manner which limits its disclosure to only those individuals who have a need to know such information.

Stay tuned for the next part of this continuing blog series. For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that effect your workplace, be sure to subscribe to our blog and follow us on social media.