HANSEN: OSHA’s COVID-19 Vaccination Mandate is Dead, Now What?

By Peter Hansen, Senior Counsel, SmithAmundsen – 

If you’re wondering what to do in the wake of the United States Supreme Court’s decision striking down the OSHA’s Emergency Temporary Standard mandating COVID-19 vaccination and testing, you’re not alone. Unfortunately, there is no short answer for many manufacturers – it largely depends on where you’re located.

First and foremost, you need to verify that you are not subject to any other COVID-19 vaccination mandates. Several local governments have implemented their own COVID-19 vaccination mandates, including Chicago. If you are obligated to implement a COVID-19 vaccination policy, act accordingly. Employers not covered by local mandates, on the other hand, have the option of choosing whether to implement a vaccination policy and, if so, how to enforce it … in theory.

Whereas Illinois recently amended state law to explicitly allow employer vaccine mandates, both Indiana and Wisconsin have some pending legislation that would curtail a manufacturer’s discretion to implement workplace vaccination requirements:

Indiana’s House Bill 1001, recently passed by the House and awaiting vote in the Senate, requires that any mandatory vaccine policy allow employees to either become vaccinated or undergo weekly testing – at the company’s expense. Indiana manufacturers could request reimbursement for the costs associated with testing (capped at $50 per test), but the bill does not specify how that would occur … or guarantee that reimbursement will in fact occur. Notably, a large number of reimbursement requests are likely, so whatever funds are set aside for reimbursement could dry up quickly.

Wisconsin has introduced several bills relating to COVID-19 vaccination, from prohibiting mandatory vaccination policies to making employers liable “where an injury to an employee is found to be caused by a vaccine … that the employee was required by or coerced by his or her employer to receive.” (“Several” may be an understatement; the four bills I linked to are nowhere near all of them.) None seem particularly likely to pass, and would be subject veto by Governor Evers even if they did.

Unless and until one of the bills actually passes – which admittedly seems more likely than not in Indiana – manufacturers in all three states have options when it comes to implementing and enforcing a more rigid COVID-19 vaccination policy. What that vaccination policy would look like is another matter. Manufacturers should consider masking requirements, how employees can request exemptions for religious or medical reasons, who will cover costs associated with testing, and so on.

Moreover, employers must continue to do everything they reasonably can to diminish the spread and transmission of COVID-19 in the workplace pursuant to OSHA’s General Duty Clause. Under the General Duty Clause, employers are obligated to maintain a workplace that is free from recognized hazards that can cause illness or injury. OSHA has publicly stated that it will continue to enforce this standard with respect to COVID-19.

So, to summarize: it’s a jungle out there. In light of the above, all manufacturers should consult with trusted legal counsel to determine their obligations and options in implementing a COVID-19 vaccination policy unique to their workplace, operations, and geographic footprint.

Peter Hansen is a Senior Counsel in SmithAmundsen’s Labor & Employment Practice Group, the focus of which includes a multi-disciplinary COVID-19 task force and vaccine mandates in the workplace. Peter is a contributing author to the firm’s labor and employment advisory blog (HERE) as well as the Illinois Chamber of Commerce’s Chamber Dispatch, an HR advisory blog. SmithAmundsen is proud to support TMA’s manufacturer members since 2013 and has eight offices, including in Chicago, Crystal Lake, St. Charles, Rockford, and Milwaukee.

First published from the Technology & Manufacturing Association January 31, 2022