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4 potential pitfalls lie ahead for OSHA’s vaccine mandate, say experts

October 27, 2021, 6:52 PM UTC

Businesses have what seems like a million questions about the federal vaccine and testing mandate expected to be released soon by the Occupational Safety and Health Administration. It turns out academics, lawyers, and policy experts do as well.

President Joe Biden directed OSHA in September to issue an emergency temporary standard that would require private businesses with at least 100 employees to put vaccine mandates in place and ensure unvaccinated workers undergo weekly COVID-19 testing.

OSHA submitted the rule to the Office of Management and Budget earlier this month. Since then, administration officials have spent weeks meeting with employers, business groups, unions, and experts to hear input before putting the rule in place, and experts anticipate the rule will soon be public. 

In a House Education and Labor Committee hearing on Tuesday, several witnesses outlined some potential problems and hurdles that businesses and the federal government may be facing once the mandate is public. And any one of these issues could spell legal disaster for the mandate.

Are employees really in ‘grave danger’?

One of the biggest challenges is whether OSHA will be able to prove there is a “grave danger” to employees to the extent that it justifies having a vaccine and testing mandate in place. “I think they’re going to have trouble meeting that standard,” said Scott Hecker, senior counsel in the workplace safety and environmental practice group at the law firm Seyfarth Shaw. 

OSHA is primarily a workplace safety agency, Hecker said Tuesday. But when it comes to COVID-19, there will still be unvaccinated people and risk of infection outside the workplace, even with a mandate in place. “This is a public health concern,” Hecker told the committee. “It’s hard, I believe, to tie exposure to COVID as a public health concern, specifically to the workplace.”

It doesn’t help, Hecker added, that the Biden administration and others are touting the successful partnerships with employers to enact risk mitigation protocols and prevention. “That sort of undermines the necessity,” Hecker noted, adding he believes this will lead to an onslaught of legal challenges by both states and private employers when the OSHA rule finally does go public. 

How do you verify a vaccine status?

Once the rule is public, another concern is vaccine verification. Rep. Donald Norcross (D-N.J.) questioned how responsible employers will be for verifying workers’ vaccine status, especially with the proliferation of fake vaccine cards on the market. “What steps can [employers] take to prove that the information being given to [them] is actually true?” Norcross asked.

That’s one of a host of details that will hopefully be addressed by OSHA’s rule, but generally, the agency requires “good faith compliance” by employers, said Sidney Shapiro, a law professor at Wake Forest University School of Law. 

Yet what exactly that means in these types of situations is a bit unknown. States do have records of who was vaccinated and who was not,” Shapiro said, but gaining access to those records may be more challenging in some states. Only about seven states currently have some type of vaccine verification app.  

What happens if the definition of ‘fully vaccinated’ shifts?

Currently, a person is considered “fully vaccinated” two weeks after their second dose of the COVID-19 vaccine. However, that definition could be changing. Last Friday, the Centers for Disease Control and Prevention director Rochelle Walensky said the agency may be updating its definition in light of COVID vaccine boosters

“It certainly could cause confusion,” Hecker said, adding that there have been a number of instances throughout the pandemic in which federal agencies haven’t been on the same page. 

It could also put more burdens on employers, HR managers, and even supervisors to basically become experts on a whole host of health and policy issues. 

It’s also worth noting that vaccinations take time. The Moderna and Pfizer vaccines, for example, require a waiting period between doses, plus two weeks after the final dose for recipients to be considered “fully vaccinated.”  

How will religious exemptions work?

The religious rights of employees are covered under Title VII of the Civil Rights Act of 1964. Under Title VII, an employer needs to provide reasonable accommodations to employees with sincerely held religious beliefs, as long as those accommodations do not place undue hardship on the employer, said Doron Dorfman, an associate law professor at Syracuse University College of Law. 

But there’s an open question as to whether religious exemptions even apply in the case of vaccine mandates. When asked if he knows of any religion that prohibits vaccination, Dorfman said: “I personally do not know of any religion that prohibits any vaccination per se.”

Additionally, employers may not have to offer religious accommodations if it places undue hardship on the business. Legal precedent stipulates that anything more than a “de minimis” cost constitutes an undue hardship and would therefore give the employer wiggle room to deny some requests for religious accommodations, said Dorfman, who focuses on health law, disability law, and employment discrimination law. 

Costs, in these cases, are not only measured financially, but also through disruption to the workplace, and burden on third parties like other employees, Dorfman said. 

“When we’re talking about costs, we’re talking about the risk to other employees of getting COVID-19. We’re also talking about the ability of the employer to conduct their business properly. So in those situations, when there is a request for a religious accommodation, if there is more than a de minimis cost to the employer, they can refuse to accommodate a request to not get the vaccine,” Dorfman said. 

In cases where employees do seek religious exemptions, Dorfman said it will likely be an interactive process between a manager and a worker where they discuss what would be the reasonable accommodation under the circumstances. Those could include getting tested periodically, working remotely, getting reassigned to a job that requires less interaction with others, or a revised schedule.

For large companies, simply considering a wide number of requests could be burdensome—not to mention having to reassign those employees and adjust their job functions to accommodate their unvaccinated status. 

“Giving all those accommodations to many employees would actually make it much harder for the employer to run its business. In those circumstances, employers would not be under any legal obligation to grant those requests,” he said.

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