Last updated: January 18, 10:12 a.m.
**As of our last update, the US Supreme Court has blocked the Biden Administration’s attempt to mandate vaccination for businesses with 100 or more employees, with the exception of some health care facilities. A full update can be found at the bottom of this post.**
Since the beginning of the pandemic, the Columbia Chamber of Commerce has advocated for the rights of businesses and organizations to make decisions best suited for themselves, their employees, and the clients they serve. Our staff is closely monitoring the Biden administration’s proposed vaccination mandate as it makes its way through the court system, and we will do our best to prepare our members for requirements that may take effect in the coming weeks and months. Read on for a brief update on what’s happening now and how your business can stay prepared in the constantly changing COVID-19 landscape.
What do we know about the Biden administration’s vaccination mandate?
On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced guidelines for a private employer vaccination mandate, known as the COVID-19 Emergency Temporary Standard (ETS). If implemented, this ETS would mandate that all employers with 100 or more employees require their staff to be fully vaccinated or submit to a COVID-19 test at least once a week. The mandate also requires that these businesses give paid time off for employees to become vaccinated, including recovery time from any side effects, and instruct every unvaccinated worker to wear a mask at all times while working indoors. Initially, all affected employers were required to be in compliance with most of the requirements by December 6, 2021 and with testing requirements by January 4, 2022.
What happened following the announcement?
On the morning of November 5, Missouri Attorney General Eric Schmitt, along with AGs from 10 other states, filed a lawsuit against the Biden administration to halt the vaccine mandate.
The following day, a U.S. Circuit Court of Appeals placed a temporary halt on the vaccine mandate, stating it was halted pending review with concerns that it has “statutory and constitutional issues.” The Biden administration’s attorneys have indicated that they are prepared to defend the mandate in court.
What does this mean for your business?
At this time, there’s no way to predict the outcome of this court action, although we expect to know soon whether or not any part of the mandate can take effect while the litigation is ongoing. The good news is that while the mandate is hung up in court, you have additional time to prepare for what comes next. Our intent is to provide our businesses with the most up-to-date information possible, but we also strongly encourage you to speak with your legal representatives as you prepare for this mandate. Please do not consider this or any communication of the Columbia Chamber of Commerce as legal advice.
What should my business do to prepare?
Familiarize yourself with what it means to be vaccinated.
OSHA considers a person fully vaccinated if they have had both doses of the Pfizer or Moderna vaccine or one dose of the Johnson & Johnson vaccine.
Create a policy for your employees to follow regarding time off for getting vaccinated.
Under the mandate, employers must provide up to four hours of paid leave for workers to receive each vaccination dose; this time cannot be deducted from an employee’s existing paid leave balance. Employers must also allow employees to take time off for recovery from any side effects (OSHA recommends two days), but this time can be drawn from an employee’s existing leave balances.
Communicate clear guidelines for any employees that do not consent to be vaccinated.
Employees that do not become fully vaccinated must provide a weekly negative COVID-19 test AND wear masks when working indoors. If the employee simply does not consent, the employer is not required to pay for or provide the test. However, if the employee cites a religious or medical exemption from vaccination, the employer must pay for the test.
Communicate clearly and often about the anticipated requirements for unvaccinated employees before any aspects of the mandate take effect. Communication is key and should be repeated regularly during the change.
Stay connected with the Columbia Chamber of Commerce to continue receiving up to date information regarding business legislation at all levels of government.
Only one thing is certain – the mandate and other COVID-19 policies will continue to evolve as they are challenged in court and the severity of the pandemic changes. Chamber staff continuously monitor legislation relevant to the business community and work to keep you informed on issues that matter to our economy. Watch our blog and social media for future updates on this issue.
Update (November 17, 2021)
This afternoon OSHA released the following statement: “On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Update (December 22, 2021)
The Sixth Circuit Court of Appeals reinstated OSHA’s Emergency Temporary Standard on Friday, December 17. This ruling overturns the previous stay ordered in November and allows OSHA to resume implementation and enforcement. The rule is set to be enforceable on January 10, 2022, with testing rules enforced starting February 7, 2022. There are still many legal challenges ahead for the ETS, and we will do our best to keep you apprised of any changes. We urge all companies with 100 or more employees to be in contact with a labor law attorney to better understand what this rule means for your company and how to prepare for compliance.
Update (January 18, 2022)
On Thursday, January 13, the US Supreme Court blocked the Biden administration from mandating COVID-19 vaccination for all businesses with 100 or more employees. However, a similar rule for health care facilities was allowed to stand. In a press release, the Missouri Chamber of Commerce & Industry hailed the move as a win for supporters of free enterprise, and promised to continue watching both state and federal legislature for any legislation which would prevent businesses from deciding what is best for their employees and clients – whether that is a vaccination mandate or a law against requiring employees to be vaccinated.
For more information, please visit the OSHA website.
Submitted by Lily E. White
Vice President of External Affairs
Columbia Chamber of Commerce