Key components of the Biden administration’s COVID-19 vaccine or test mandate for more than 80 million workers went into effect Monday amid an ongoing Supreme Court battle that could ultimately doom the rule.
The months-long legal battle over the requirement, which was previously blocked by a federal court before being reinstated, has created confusion among employers about how to move forward. While Supreme Court justices expressed skepticism about the rule on Friday, they did not block its implementation by Monday’s deadline.
As of Monday, businesses with 100 or more employees were required to have a database of their workers’ vaccination status, post their company vaccine policy, provide paid leave to workers getting the vaccine and require unvaccinated employees to wear a mask at work.
The Occupational Safety and Health Administration (OSHA), the agency tasked with enforcing the rule, has said it won’t issue penalties for noncompliance until Feb. 9. That’s the deadline for businesses to implement the weekly COVID-19 testing alternative for unvaccinated workers.
“OSHA has been very careful to say that as long as employers are in good faith moving towards compliance, that they’re not going to issue any citations until Feb. 9,” said Domenique Camacho Moran, an employment attorney at New York-based law firm Farrell Fritz P.C.
“But if there’s an egregious violation, I don’t think employers can rely on the promise that there will not be a citation,” she added. “Employers need to take steps to immediately comply.”
Simply collecting vaccination information has proven difficult for some businesses, particularly when it comes to getting unvaccinated workers to reveal their status. Business groups point out that federal agencies were unable to determine the vaccination status of hundreds of their own workers when they revealed agency-wide vaccination rates last month.
“Even the requirement of just figuring out who is vaccinated and who isn’t is a significant burden, and the confusion around court rulings and whether the rule is in effect hasn’t helped,” said Ed Egee, vice president of government relations and workforce development at the National Retail Federation, which asked the Supreme Court to halt the OSHA mandate.
The risks are high for employers that ignore the rule. Noncompliant employers could face fines of up to $14,000 per violation and potentially open themselves up to litigation from workers who contract COVID-19 in the workplace.
Large businesses, particularly those in the manufacturing, retail and service industries, are most concerned about losing unvaccinated workers amid a tight labor market where 10 million jobs remain unfilled.
Last week, the Postal Service asked OSHA for a 120-day extension to comply with the rule, stating that it would be “nearly impossible” to meet the deadlines in time and warning that the mandate would cause many employees to leave the already understaffed mail service.
“Given the significant challenges that our nation’s supply chains are already experiencing, we respectfully suggest that the nation cannot afford the additional potential substantial harm that would be engendered if the ability of the Postal Service to deliver mail and packages is significantly negatively impacted,” Deputy Postmaster General Douglas Tulino wrote in a letter to OSHA officials.
An October poll from the Kaiser Family Foundation found that 37 percent of unvaccinated adults would leave their job if they were forced to get vaccinated or submit to weekly testing, but only 5 percent of unvaccinated workers have actually left over vaccine mandates. Roughly 15 percent of U.S. adults remain unvaccinated.
While businesses initially cheered the OSHA mandate’s weekly testing alternative as a way to retain unvaccinated workers, they’re now confronting the challenge of finding millions of COVID-19 tests as the nation grapples with a severe testing shortage.
Employers can opt to institute a strict vaccine mandate and ignore the testing alternative, but few have chosen to do so. When testing requirements go into effect on Feb. 9, businesses will have to compete with schools, hospitals and the general public for the limited supply of tests.
“Employers can’t afford to scrap the testing option because they don’t have workers to replace these people,” Camacho Moran said. “And if unvaccinated employees can’t get tested, they can’t come to work.”
Business groups and labor lawyers are advising employers to purchase tests now, even at current sky-high prices, rather than wait for a Supreme Court ruling and risk being noncompliant come Feb. 9.
“Our members are going out and trying to procure hundreds of thousands of tests for employees, and they don’t even know if this will go into effect,” Egee said.
Employers are closely monitoring lawsuits from business groups and Republican-led states to defeat the rule. During oral arguments over the vaccine or test mandate on Friday, members of the Supreme Court’s conservative majority expressed skepticism about whether OSHA has the authority to issue the standard.
The Biden administration argued that the rule will save the lives of more than 6,500 workers and prevent roughly 250,000 hospitalizations over the next six months. The U.S. is reporting record numbers of COVID-19 cases driven by the omicron variant, and vaccines drastically reduce death and hospitalizations caused by the virus.
“Exposure to COVID-19 on the job is the biggest threat to workers in OSHA’s history,” Solicitor General Elizabeth Prelogar told justices Friday. “The court should reject the argument that the agency is powerless to address that grave danger.”
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