Following President Biden’s late-day bombshell of a press interview on Thursday, September 9, 2021, employers frantically researched various policies and standards over the weekend. The dilemma facing many employers includes the current labor force shortage juxtaposed against the politically charged vaccination efforts. While OSHA can, and will, fine employers for failing to provide safe and healthy work environments for their employees, those requirements typically include such regulations such as wearing steel-toed boots and hard hats during work hours, yellow vests while entering work floors, or the prohibition of wearing jewelry in and around certain equipment. These logical requirements, while not preferred by some or maybe even most employees, are at least justifiable for why such measures are required and easily explained by employers. But, how far can the government legislate to promote the health and safety of employees? The above-cited examples do not impact a worker’s bodily integrity, do not violate an employee’s religious or medical rights (for the most part) and the consequences for noncompliance are easily understood. Indeed, if you wear a 30-inch necklace that gets caught in a printing machine, you could lose your head. That type of consequence is real, and employees understand them.

With the COVID-19 vaccine, there is no quantifiable consequence. The research shows that a fully vaccinated person can still be a carrier of the virus and infect other individuals. Also, and as new strains develop, vaccinated persons are not immune from catching the virus. Employers may find it difficult to justify to their workforce the purpose of these rules. Unfortunately, the consequences for abstaining from the vaccine are too intangible for an employer to justify the reasoning behind requiring vaccinations of all employees. The only explanation an employer may provide at this juncture is, “because the government requires it.” This serves as a drastic contrast to previous OSHA standards where the prevented harm is foreseeable.

Despite its intangible consequences, the Federal Government, using health and safety standards concerns intends to require that all employees of companies exceeding 100 employees must obtain a COVID-19 vaccine. But in today’s climate with the politically charged controversy enveloping the COVID-19 vaccines, a deficient labor force, and unclear consequences for failing to obtain the COVID-19 vaccine, can OSHA enforce a mandate such as one proposed by President Biden? Historically, OSHA has neglected to institute a similar mandate relating to the annual influenza vaccine. While it “expects facilities providing healthcare services to perform a risk assessment of their workplace and encourages healthcare employers to offer both the seasonal and H1N1 vaccine…OSHA does not specifically require employees to take the vaccines, an employer may do so.” See 2009 OSHA Letter regarding Influenza Vaccine Mandate. All OSHA standards through the present instituted mandates related to uniform or attire standards worn by workers, and various requirements concerning spacing and location of machinery, the storage of categorized materials such as chemicals, and conducted inspections of various employer’s facilities to ensure compliance with its imposed industry standards. Until now, OSHA has declined to require vaccinations and has left that decision up to individual employers.

While Biden’s speech failed to provide exemptions for the vaccine based on religious or health-related grounds, he does state that employees who refuse to get vaccinated must be tested once per week. Testing allows objectors to the vaccine to continue employment by providing an exception, but President Biden failed to articulate who would bear the cost of the testing, if the employer would be required to pay the employee to take time off to take the test, and how the employer is required to maintain the test results from the employee.

This latest policy by the federal government leaves employers nervously wondering – Can the Government require such measures? In the interest of public health and safety, where is the line drawn? OSHA historically has declined to require vaccines by employees. This deviation from prior policy will assuredly lead to a mass influx of litigation instituted to contest the enforceability of such measures. This litigation will largely come down to the interpretation of the federal government’s justification that it has the ability to require individual Americans to obtain the COVID-19 vaccine. However, and while these measures snake through the slow channels of the courts, what are employers supposed to do right now? Today?

Right now, employers should wait until further guidance is published by OSHA. A rule has not been promulgated yet. Until then, we can only hypothesize what the proposed rule from OSHA will include based on the content within the President’s speech.

Unfortunately, President Biden’s speech left open insurmountable questions that are simply just not available at this time. For instance, how many employees equal 100? Does that include independent contractors? What about part-time employees? What about subsidiaries and any employees classified as working with those subsidiaries – are they counted towards the 100? What are the OSHA fines associated with refusing to enforce COVID-19 vaccines within its workplace? (Reports state that fines could be up to $14,000.00 but is that per employee, per inspection, and a finding of non-compliance, or as a total?) Will refusal to institute such requirements make more sense in an employer’s cost-benefit analysis than potentially alienating employees who may quit their job in response? How will OSHA conduct inspections into whether or not the workforce of an eligible employer is compliant? Are employers fined for employees refusing to obtain the vaccine requiring the employers to terminate their employees? When will these rules go into effect? These questions may be answered following OSHA’s new rule which is forthcoming according to various reports.

Inevitably, Courts must grapple with the differing political ideologies on the COVID-19 vaccine and will be the ultimate decider in this evolving landscape debate between personal integrity v. worldwide health and safety concerns. Here in Florida, a Leon County Circuit Court Judge determined that the Governor overstepped his authority in instituting a ban against mask-wearing mandates for education facilities.  See Governor Ron DeSantis, et al. v. Allison Scott, et al., Case No. 2021-CA-1382, Leon County Civil Circuit Court.  On appeal, the First District Court of Appeals issued a one-page ruling quashing the stay and stating that “we have serious doubts about standing, jurisdiction, and other threshold matters. These doubts significantly militate against the likelihood of the appellee’s ultimate success in this appeal.” See September 10, 2021 Order.  The stay, while remaining in place for the purposes of the appeal, is evidence that the Court of Appeals could rule in favor of Governor DeSantis having authority to institute a statewide ban on mask mandates for Florida school districts.

Conversely, a Southern District Court Judge intervened against a law that prevented cruise liners from requiring customers to be fully vaccinated prior to sailing with the cruise liners. That Judge states that such measures violate a business’ integrity as companies attempt to “reopen.” See Judge Kathleen Williams’ Order in Norwegian Cruise Line Holdings, Ltd., et al. v. Scott Rivkees, M.D., Case No. 21-CV- 22492-KMW (S.D. Fla. 2021). While this Court Order directly analyzed the cruising industry with particularity, the reasoning behind the Order could apply across many industries. What seems to be the essence of these most recent orders is that the government should refrain from prohibiting or legislating vaccine bans or mandates. Judge Williams’ order has been appealed and is presently pending before the United States 11th Circuit and will likely be addressed by the Supreme Court of the United States.

Ultimately, this unpredictable and expensive litigation provides little to no relief to frustrated employers who simply want to go about their business and avoid politics in the workplace. Unfortunately, for both employers and employees, it appears that avoiding these contentious discussions will soon come to an end and many business owners are going to have to make difficult choices moving forward.

The labor and employment attorneys at Shuffield, Lowman & Wilson are happy to answer any questions and assist with preparing policies to protect your company and your workforce so that you can focus on your business.