OKLAHOMA CITY – Business owners who fall under the federal vaccine mandate for companies with more than 100 employees should prepare for compliance while awaiting a final ruling on the rule, a legal expert said.
The cyclical COVID-19 vaccine requirement is set for oral argument on January 7 in the United States Supreme Court.
“You can take a chance and get by, but that’s no way to run a business – on a hope and a prayer,” said Adam Childers of the Crowe & Dunlevy law firm.
Childers, chair of the company’s work and employment practice group, advises clients to have plans and policies in place and a list of employees vaccinated and those who are not.
If the mandate is upheld, unvaccinated employees must undergo a weekly COVID-19 test. Under Oklahoma law, the cost of these tests is the responsibility of the employer, Childers said.
Companies must either purchase kits and have a supervisor to oversee the testing, or send employees to a testing site.
If the nearest location is 20 miles from the workplace, do you also pay employees for their time and travel? If you choose to do the on-site testing, where will you buy the 50, 150, or 300 tests per week needed?
Logistics and spending could be problematic for businesses that aren’t prepared, Childers said.
“Vaccinations have become such a personal hot spot for people and employers are caught in the middle,” he said.
The Occupational Health and Safety Administration issued the Temporary Emergency Standard on November 5 that applies to employers in all workplaces under the authority and jurisdiction of OSHA and with more than 100 employees across the company.
The ETS requires, with few exceptions, that covered employees be fully vaccinated against COVID-19 or wear face covers and submit weekly COVID-19 test results to the employer.
Just a day after the ETS came into effect, the United States Court of Appeals for the 5th Circuit suspended enforcement. Then, on December 17, the 6th Circuit – responsible for hearing all disputes from the ETS – lifted the suspension of the 5th Circuit, which means that the ETS is once again in force and enforceable.
OSHA has said it will not issue citations for non-compliance with any of the requirements until January 10 and that it will not issue citations for non-compliance with testing requirements until February 9. , provided that employers act in good faith to comply, Childers said.
The Supreme Court must decide whether the government is overstepping its bounds by requiring vaccinations or by committing to do something beneficial for people they haven’t been able to do on their own, Childers said.
While oral argument decisions may take months to be rendered, this will likely come much sooner.
“I don’t think it’s wise to guess how the judges will vote,” Childers said. “There are so many different ways the Supreme Court could do it. “
Is the number 100 arbitrary and capricious? Do the reasons given for the standard hold? Each judge will also weigh their legacy, Childers said.
This is an important moment, ”he said. “I think we’ve gone for a wild ride. It will impact hundreds of millions of citizens.