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Just When You Thought It Was Back to Business As Usual...

I normally avoid compliance-related topics, but the Biden Administration’s September 9 announcement of a vaccination mandate for employees in companies of 100 or more employees presents a topic too big for an HR guy to ignore; and when I say “big,” I mean “a topic that impacts about two-thirds of the entire US workforce.”

Major changes to federal employment regulations are normally preceded by months of public commentary and scrutiny, allowing employers to get themselves ready for the effective date. In this case, no such luck: On September 10, OSHA said it won’t be open to any public comment, as they’ve committed to establishing its regulatory framework “in a matter of weeks.” Well, that feels reassuring.

So without thinking terribly hard about it, here are a few questions that come to mind:

- What defines “100 employees?” OSHA has implied it will likely mean total employer count rather than per worksite. But can employers create new legal entities that place them under the threshold? And how will the National Labor Relations Board’s most recent position on joint employment figure into the analysis?

- Is this testing on company time? Pretty much anytime an employer requires a test, it’s considered compensable under the Fair Labor Standards Act, so I don’t see how employers will escape the obligation to pay for them, especially if it’s during the workday. Which means you could be paying overtime to non-exempt employees while they’re standing in line at the testing center (and they’ll all be right back, honest…). If that’s the way it goes down, that’s sure to be popular with the vaccinated employees who don’t get to take a midday drive across town. And is this really up to OSHA, and not the US Department of Labor?

- It’s quite possible employers will be allowed to require use of paid time off to get tested, but I wouldn’t be too quick to take that position. Employees can be remarkably inventive in committing clandestine acts of sabotage, and a PTO mandate for getting an unwanted test would certainly be a great incentive to revenge for many.

- And if an employee becomes injured while travelling to or from a test, will that be considered compensable under workers compensation? Again, is this an OSHA decision or one for the states, since they govern workers compensation?

- What constitutes a “COVID test,” anyway? I’ve read that there are others beside the PCR test, which is on the expensive side. But here’s the real concern: Can American suppliers really provide 80 million or so such tests a week? That’s 4.16 billion in a year! I know nothing about national COVID test supply, but those numbers leave me skeptical that we’re going to have enough for everyone to fulfill Mr. Biden’s mandate. What happens to those employees who can’t get a test because there are none to be given?

- If vaccine efficacy against future virus mutations declines, do the currently vaccinated then become the unvaccinated, and thus subject to the testing requirements?

- What is the employer’s obligation to verify the authenticity of “proof of vaccination,” especially as boosters proliferate?

- Who’s keeping the test records? OSHA already requires employers to keep records for 30 years or more. If COVID tests fall under those rules, employers will soon be burying all these things in mason jars in the ground.

- It’s apparent the policy is designed to force the recalcitrants to quit, but that outcome carries risks for an employer. Voluntary termination is usually grounds for denial of unemployment benefits; but if an employer makes conditions so intolerable for an employee that a reasonable person has no choice but to quit, that’s called constructive discharge, and that’s usually compensable (and charged to whose UC premium?). Don’t forget, like workers compensation, unemployment compensation is governed by the states, not the federal government. If that argument catches on in various states, imagine what that will do to already-strained state UC funds.

- On the other hand, employers who actually fire employees for failure to comply will almost certainly be hearing from many of those employees again. Some of those re-encounters will be in suits that challenge the legality of the mandate at all; but many are sure to be retaliation claims, which in recent years have been at times eclipsing discrimination claims as the most common complaint brought before the EEOC. “Sure, they told me it was because of the vaccine mandate,” these plaintiffs will begin, “but really, they fired me because of my (whistleblower activity, harassment victim status, membership in protected class, etc.)”

As anybody who has dealt with these situations knows, they’re not a matter of whether an employer is in the right or the wrong: the issue is how much time and money will the employer have to spend to make this go away. Regarding terminations from this mandate, the sure answer is: a lot more than you’ll care to spend.

What makes these questions so particularly thorny is that OSHA’s rules, in whatever final form they take, will be considered Emergency Temporary Standards (ETS). They’ve only issued a handful of ETS in the Administration’s existence, but they’ve been struck down about half the time. If employers start terminating or forcing out employees before the inevitable challenges have played out – you get the idea.

Unvaccinated employees aren’t likely to be the only ones punished before this is all over.


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