As some employers were taking measures to comply with OSHA's Emergency Temporary Standard requiring employers with 100 or more employees to administer Covid-19 vaccine-or-testing rules, a divided U.S. Supreme Court enjoined the enforcement of standard, for now, although permitting the healthcare industry to implement the rule.
For John Sarno, president of the Employers Association of New Jersey, many employers are relieved but many others are in a quandary.
“To deny the impact of the coronavirus on the workforce would be extremely callous,” says Sarno. “Employers have to do something to convey their concern for workers health and safety or risk a group of disgruntled and disgusted workers quitting or just doing the very least on the job," he adds.
On the other hand, some employers are uncomfortable or unable to process the complex information required to implement the right policies and practices. “Many of them quietly said, if the mandate … was upheld, we could at least tell our employees, ‘They’re making us do this’ and so shift some of the blame, some of the frustration,” said Sarno.
Now it’s up to employers. With so many workers calling out sick and the omicron variant still fueling high COVID-19 caseloads, it’s a tough decision. Regardless of size, employers must continue to stay apprised of the latest information on infection rates, testing and vaccine availability other information form the Centers for Disease Control and Prevention and other credible sources.
Since the court decision, the Occupational Safety and Health Administration, has withdrawn the emergency temporary standard effective January 26, 2022. However, the agency has not withdrawn the standard as a proposed rule as the court gave its approval to regulate risks associated with working in particularly crowded or cramped environments.
At present, both the CDC and OSHA strongly encourage vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.
Recent surveys suggest that most employers do not affirmatively require workers to get vaccinated as a condition of employment.
“It’s a mixed bag of reasons,” says Sarno. “Some are concerned about employee push-back and others don’t like keeping records or tracking employees. Others are doing the basics like working from home and requiring masks so that’s enough for them. But I think the main reason is that implementation of a vaccine policy is labor intensive and time consuming and that means training and paying people to implement the policy.”
And some companies have changed policies dramatically, confusing workers and customers. Before the court decision, Starbucks announced that it was requiring its U.S. employees to be vaccinated against Covid-19 or submit to regular testing, one of the first large restaurant chains to take such a step ahead of potential federal vaccination mandates for large employers.
After the court decision, employees were told in a memo that they would no longer be required to be fully vaccinated or submit to weekly coronavirus testing.
Despite the change, Starbucks is still encouraging that all workers be vaccinated.
Still most experts and employment lawyers are recommending that employers implement, or continue to administer, robust policies and practices. And employer can implement vaccine requirements if it wants to.
For example, employers may choose to have a mandatory vaccination policy for one subset of employees and an optional vaccination policy with testing and face coverings for another subset of employees. And employers may also have to provide reasonable accommodations for the COVID-19 testing and face covering obligations due to disabilities and sincerely held religious beliefs.
Employers may determine and record each employee’s COVID-19 vaccination status, including if an employee is partially or fully vaccinated, and require and preserve acceptable proof of vaccination status of all employees who are vaccinated, including if they are partially or fully vaccinated.
Employers can maintain rosters that indicate, for each employee, whether they are fully or partially vaccinated or not vaccinated at all.
“The pandemic has not repealed the laws of human nature,” says Sarno. “If employers are getting by with working from home and wearing masks on site and business is getting done without requiring workers to get vaccinated, and if its not broke, why fix it.”