Vaccine Mandate Rule: League Offers Initial Assessment; Seeks Answers on Key Legal Questions

By Carrie Hunt

The vaccine mandate rule came out yesterday and was officially published in the Federal Register today -- all 490 pages of it! The actual rule part is small and digestible- albeit burdensome to implement.

Fact Sheet and Rule:

• COVID-19 Vaccination and Testing ETS (osha.gov)
• Federal Register: COVID-19 Vaccination and Testing; Emergency Temporary Standard

In General:

• Employers with 100 employees or over must have a vaccinated and documented workforce or a testing option by Jan. 4.
• Employers are required to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
• Employees may claim a medical exemption, disability covered by the Americans with Disabilities Act or a religious exemption from getting vaccinated.
• Unvaccinated employees must test weekly and wear a mask.
• Employers are not required to pay for testing.
• The rule does not apply to full-time teleworkers or outside workers.
• Employers who don’t adhere to the requirements could face penalties of up to around $13,600 per violation. OSHA typically responds to complaints and random inspections. Traditionally, OSHA does not have the enforcement resources for wide inspections.

The rule also puts out for comment whether employers under 100 will have to comply. My guess is that the Biden Administration will extend this to everyone. In part to survive a legal challenge. This rule is being put out under the authority of OSHA’s “emergency temporary standards” authority. Having it apply to only certain employers undercuts the emergency.

The rest of the 480 pages contain justification after justification for the rule that the courts will have to pore over. The rule is also clearly a political piece.

In particular, I am frustrated by the discussion relative to employees leaving the workforce. As many credit unions have told me, finding employees in this labor market is very challenging. I spent 10 minutes discussing labor issues with OMB when discussing this proposal. OSHA acknowledged in the rule “that a vaccine mandate may result in increased employee turnover,” though it says “the net effect” will “be relatively small” given the testing option.

OSHA says employer benefits like lower worker absenteeism will offset their costs. I question that analysis. The rule also points out that relative to testing- an employer is not required to pay unless they are pursuant to a collective bargaining agreement. The Biden Administration is sending a message for sure. The OSHA rule also claims that testing is readily available. Having driven to six CVS stores recently to make sure my kid’s sniffle was not COVID, I am not so sure.

Already several governors have sued over the rule. The League’s counsel, Woods Rogers is preparing some materials for our members to use for compliance. Irrespective of litigation, credit unions will need to at least prepare to implement policies.

Important Dates:

• Dec. 5, 2021: Employers must make the decision to either require full vaccination of the workforce or go the testing option route. Employers must provide employees paid time off to get vaccinated and recover from vaccine side effects. Non-vaccinated employees must wear masks.
• Dec. 6, 2021: Comments are due on whether it should apply to all employers (below 100 employees).
• Jan. 4, 2022: Employers with 100 employees or more must have a vaccinated and documented workforce or a testing option process in place for those who are unvaccinated.

The League welcomes feedback and we will comment on the proposal. Email us at pr@vacul.org.