To make sense of how to navigate the Covid-19 pandemic, the best course may well be to cut through the media chatter and hype about new rules built on shifting sands and focus on how one’s local community, in practice, is handling mask and vaccine mandates and the local laws in play.
The various federal, state, and local rules regarding mask and vaccine mandates are enough to make one’s head spin. With the advent of the omicron variant, the situation is likely to get more confusing, so this is a good time to take stock of what rules employers should be concerned about.
Three levels of government and four fold lessons learned:
- Federal Law
On September 9, 2021, President Biden signed an executive order requiring all federal executive branch employees to get vaccinated. The executive order also directed that the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) require employers with more than 100 employees to have their employees vaccinated or have them undergo regular testing for Covid-19.
On November 4, OSHA issued an Emergency Temporary Standard (“ETS”) requiring employers to comply with the 100-employee vaccination rule by January 4, 2022. OSHA’s ETS was promptly challenged by a slew of state attorneys general claiming that the issuing of an ETS was an improper end-run around the formal rulemaking process and that the promulgation of such an emergency rule was beyond the authority of the agency, which historically has been concerned only with workplace-related safety issues.
So, despite the fanfare, the implementation of President Biden’s executive order has been halted. The case challenging the President’s order is on appeal and likely will end up with the Supreme Court. Some commentators, however, familiar with the history of OSHA, are not optimistic that the ETS will survive Supreme Court scrutiny, and this would likely scuttle efforts to implement a national standard that can be enforced. By way of reference, the Centers for Disease Control (“CDC”) has issued guidelines for managing Covid-19, but they are just that—guidelines– that are not legally enforceable.
- State Law
Without an enforceable national standard governing masks and vaccines, the fate of vaccine and mask mandates has lain with the states. The result has been a patchwork of laws, with each state coming up with its own approach. That said, for private employers, states have been mostly hands off. Except for the State of Montana, which recently enacted legislation making it a violation of that state’s discrimination law to terminate employees who refuse to be vaccinated, and New York State, the governor of which recently issued a mandate for private sector employers either to require indoor masking or proof of vaccination, the balance of the states allow employers to devise and implement their own rules, so if you are an employer with a vaccine mandate for your employees and/or require employees to wear masks in the workplace, state and local laws, overwhelmingly, have neither prohibited these measures nor prevented employers from terminating non-compliant employees, who otherwise do not articulate a medical or religious reason for not wanting to be vaccinated.
For the most part, the battle touted by the press has involved debates over whether there should be mandates for institutions, like schools and colleges, which receive state funds. In Florida, for example, the governor signed an order prohibiting school districts from issuing mask mandates. By contrast, the District of Columbia is requiring that employees and volunteers in K-12 schools be vaccinated.
- Local Law
While the touchstone for vaccine and mask mandates is state law, certain localities have produced their own rules. For example, on August 4, 2021, the mayor of New York City announced that individuals would be precluded from entering indoor restaurants, gyms, and other types of entertainment facilities without proof of having received at least one vaccine dose. Even more recently, he issued a rule that, starting December 24, 2021, mandates that all private sector workers be vaccinated, which would affect about 184,000 businesses. It remains to be seen whether the City’s private employer-vaccine mandate will survive court challenge, but it underscores the wide variety of rules that are out there and the prospect that more states and localities will try putting the onus on private businesses to police vaccine and masking mandates.
- Keep Your Eye on the Ball
With national, state, and local rules proliferating in the spirit of every man for himself, the lessons for employers are four-fold:
- When in doubt, do not get distracted by press accounts of the myriad of state and federal initiatives in play to mandate masks and vaccines or the opposite. Rather, pay attention to your local laws and be in touch with your mayor’s office or the office of your local county or state representative, which is likely to know what local rules are in place for battling Covid-19.
- In terms of obtaining guidance on whether, and to what extent, your business should implement mask and/or vaccine mandates, I would see what the trade association, relevant to your business, is counseling its members to do. With the law offering businesses little, if any, guidance, a lot of information may be obtained via tapping into the shared experiences of your business colleagues, some of whom may have implemented workplace rules mandating masks and vaccines or decided otherwise.
- Except in rare instances, like in the case of Montana, terminating unvaccinated employees in and of itself should not be a violation of any discrimination law. That said, be careful when an employee is claiming a religious or medical exception to a mandatory vaccine rule. Such claims, improperly handled, could result in discrimination lawsuits filed under the Americans with Disabilities Act, or other laws prohibiting discrimination based on religious belief.
- On the other hand, if you have a business in a state like New York, which is trying to make private employers responsible for enforcing vaccine and indoor mask mandates, you should be in contact with your local representatives to keep apprised of emerging insurance and liability issues and make sure that policy makers understand how mandates for employers could affect your business. For example, should a private employer required to enforce a vaccine mandate have to hazard lawsuits filed by resistant employees, or assume heightened insurance costs as a result? Do not assume that in the heat of their promulgating health measures policy makers are thoughtfully considering such issues; the by-word for employers should be “vigilance.”
Keeping your workforce safe in these times poses serious challenges to businesses. To make sense of how to navigate the Covid-19 pandemic, the best course may well be to cut through the media chatter and hype about new rules built on shifting sands and focus on how one’s local community, in practice, is handling mask and vaccine mandates and the local laws in play. But do not be passive, local rules enacted to protect the health of a community can cut a number of ways, so it is not sufficient for businesses just to understand their Covid environment, they also need to be active in helping to shape the rules that govern it.