Federal contractors and private companies with more than 100 employees should be moving quickly to work with their attorneys, HR staff, and benefits managers as they consider whether to develop appropriate policies and procedures to comply with President Biden’s COVID vaccine mandate.
“The time to begin preparing is now. Guidelines are expected to be issued by September 24 for federal contractors, and OSHA has stated that it will issue an updated emergency temporary standard, or ETS, in the coming weeks for private businesses,” says attorney Mary Nix of Lynn Pinker Hurst & Schwegmann in Dallas. “For workers who prefer to have the vaccine rather than having to undergo weekly testing, they should start the vaccine process now as it may take five weeks or longer to become fully vaccinated, depending on the vaccine used. So the potential compliance window is relatively small.”
Ms. Nix says that some businesses and unions are preparing to fight the mandate and she expects to see lawsuits filed after OSHA issues its ETS. It is possible that a court could enjoin implementation of the rule pending a decision. Absent an injunction, however, she expects OSHA will begin investigating complaints soon after issuing the ETS. She says that failure to comply will qualify as an OSHA violation although there is no information yet about the type of violation that would be issued.
“While it is reportedly difficult to conclusively prove how or where a person has contracted the virus, companies should be aware that if an employer is issued a willful violation of an OSHA safety mandate and there is a finding that an employee’s death was the result of a willful violation, this could carry criminal penalties,” she says.
Ms. Nix further notes that any employee has a right to complain to OSHA about a possible violation of a safety or health rule and anyone who makes such a report is protected from retaliation by an employer.
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