United States: Post-U.S. Supreme Court OSHA Ruling: Managing Omicron And Coronavirus In The Workplace

Now that the U.S. Supreme Court OSHA ruling has officially blocked President Biden's workplace vaccine mandate for most businesses, omicron and other potential COVID-19 variants continue to spread along with the virus. Many employers are wondering what more they should be doing to protect their workforce while navigating the issues of governmental compliance.

The short answer is that employers can take some time to prepare for best ways to prevent omicron, presently the fifth variant of concern, and future variants from negatively impacting the workplace. Presuming that you as an employer already have OSHA-mandated protections in place, the emergence of variants is reason to review present and future decisions by management regarding COVID-19 protections.

We can expect a periodically resurgent COVID-19, particularly among the unvaccinated public, to be with us in 2022, putting employers in one tricky situation after another as they contemplate mandating vaccines and returning to an onsite workforce. Here are several high-level issues for consideration in view of emerging variants and workplace protections.

Employees that are in the office or onsite

Revisit the following "back to basic" questions:

• Does your workplace have office workers or field workers, or is it a combination?
• Does the employer have a federal contract or is it in the healthcare provider industry? Both of those situations are being heavily regulated and need extra precautions in bringing employees back to the workplace.
• Is it in the best interests of the employer to bring all office employees back to the workplace if most of those workers have been working remotely? Why or why not?
• What percentage of office employees are working remotely? Is it simply unrealistic to require them all to return to the workplace? If not now, when?
• Is production expected to increase when most if not all remote office workers are brought back to the workplace?

On August 23, 2021, the U.S. Food and Drug Administration approved the first COVID-19 vaccine by Pfizer/BioNTech. After the FDA approved this COVID-19 vaccine, OSHA and the DOJ moved forward with an executive vaccine mandate. However, the mandate no longer exists for businesses with 100 or more employees unless it applies to the healthcare industry.

Vaccination policies and Ultimate Question

Some employers anxious to get back to in person operations have been hesitant to mandate vaccines without strong guidance from federal or state authorities. Federal laws do not prohibit most employers, schools, and other entities from mandating COVID-19 vaccinations, according to a Justice Department Office of Legal Counsel memo issued July 6, 2021. As such, public and private entities are not prohibited from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.

Similarly, late last year, the Equal Employment Opportunity Commission (EEOC) stated that employers can require workers to be vaccinated without violating most federal anti-discrimination laws, especially the Americans with Disabilities Act (ADA) as long as reasonable accommodations have been met.

So, should the employer consider and create a vaccination policy, and if yes, should vaccination be mandated or not? In selecting a time to mandate vaccinations, consider what percentage of employees are vaccinated; if the number is high, pushback will be low. However, if a majority of employees are unvaccinated, then pushback is likely to be high. Can the business afford to have employees leave over the principles of a mandate in a tight labor market?

Interestingly, though, the move to mandate vaccines reflects American sentiment, as captured in a survey conducted by the COVID States Project. The Project survey found that 64% of Americans support mandatory vaccinations for all, and 70% support them as a requirement for boarding airplanes. Still, most working employees across the country may refuse a mandatory vaccination if a medical or a religious exemption is proven. Most state governments have implemented their own mandates and orders over most businesses on combatting COVID-19.

Labor unions, particularly those involving field work, continue to push back on vaccine mandates, which make it challenging for employers to comply with state governmental or societal expectations of mandatory vaccinations or boosters. Employers should consider addressing the issue with Union leaders and exploring negotiations for a reasonable position that results in compliance as well as safety and health in the workplace.

Best practices in the COVID-era

Employers should make sure that employee handbooks and employment policies cover protections for all individuals touching the business—employees, clients and vendors that physically enter the workplace. Have your employment attorney review and update your workplace guidelines and protocols on prevention and also handling of COVID-19.

Employers should also make sure that they create leave of absence policies that are compliant with the ADA, FMLA and state paid sick leave statutes. In Colorado, for example, all employers in 2022 must provide their employees up to 48 hours of paid sick leave and, if there is a public health order by the state, workers are entitled to 80 hours of paid emergency sick leave.

Regardless of the U.S. Supreme Court's recent decision, it certainly does not hurt for employers, regardless of size or industry, to consider planning for keeping the workplace free from COVID-19 and its subsequent variants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.