United Airlines has ordered all its 67,000 employees to be vaccinated no later than October 25, or potentially face termination.
Following the lead of the U.S. government, New York City, and California, many other big U.S. corporations are joining the vaccine mandate bandwagon. Walmart, Tyson Foods, United, Facebook, and Google have required vaccination for certain employees, including remote employees who wish to return to work in company offices.
It is settled law that cities and states can require employees to receive vaccines during health emergencies. However, the federal government has no authority to enforce or order a national vaccine mandate. Yay for federalism.
President Biden supports the Pentagon’s plan to require all U.S. military members to receive the COVID-19 vaccine. Defense Secretary Lloyd Austin has set a mid-September deadline to vaccinate all troops, which he said may be moved up if the FDA gives final approval or if the rise in infection rates accelerates.
Companies do have the right in just about every state to require employees to be vaccinated. Nine states limit city and state governments from requiring vaccinations, but employees are considered at-will in most Republican, business-friendly states. It seems the coin has now flipped, with Democrats buddying up to big business and letting them be the strong arm in getting shots into employee arms, while Republicans have been more reticent to push the issue.
But the federal government is always best at undermining its own initiatives. In this case, it’s OSHA’s turn to be a regulatory fly in the ointment. Back in April, the Occupational Safety and Health Administration issued a FAQ dealing with employer-required vaccination. If an employer, like United Airlines, makes vaccines mandatory, then any adverse reaction to the vaccine becomes a “work-related” illness. This means it’s a reportable event on the employer’s OSHA 300 log.
If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.
However, the agency now states it will not enforce its own recording requirements. For now. Nobody competes with the government in asking people to do something, threatening them for doing it, then saying the threat is only a joke (only later to recant that last bit).
DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.
Next May, which is only nine months away, OSHA will look at the issue again. With large companies, which have stables filled with lawyers, this isn’t a huge issue. But for small business owners, already struggling to hire, retain, and keep workers healthy, this is a Sword of Damocles hanging over their heads.
It all comes down to the meaning of “required.” The line drawn by OSHA considers a “recommended” vaccination policy to be truly voluntary only if “an employee’s choice to accept or reject the vaccine cannot affect [his or her] performance rating or professional advancement,” and that an “employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”
This means companies which offer incentives for vaccination, that employees who decline to be vaccinated do not receive, will potentially be subject to the OSHA 300 log reporting requirement. Any time an employee becomes sick and misses work due to a vaccination that the employer provided incentives for, it can count against that business.
It’s not a small deal. In competitive bidding, many corporations use OSHA data to determine if a prospective contractor is operated safely, and bids can be won or lost based on that data. Insurers use OSHA data to set Workmen’s Compensation rates, which can increase when workers get sick due to vaccine side effects and complications.
Once vaccinated, what happens when the government decides a third booster shot is required? A recent survey found that the Pfizer vaccine, given in a third dose booster, has the same side effects as the second shot. Many employees lose a day or more of work after their second shot. I took the J&J one-and-done, and lost a day of work to the side effects. If I got the booster shot, I might lose another day, and if my employer compensated me for getting it, they could have to report it as a work-related illness.
The “voluntary” designation means that the employer in no way, with a prize, or even a lottery, offered incentives for vaccination, or a mandate for vaccination.
But isn’t that the exact behavior the Biden administration wants to incentivize?
The federal government needs to get its act together. The FDA needs to complete the Operation Warp Speed mission and fully approve the vaccines. OSHA and DOL need to permanently do away with work-related illness reporting for vaccinated employees.
In fact, now would be a great time for Congress to reauthorize the Families First Coronavirus Response Act (FFCRA) federally-paid leave. With the Delta variant increasing case loads, companies are placed between a regulatory rock and a virus hard place—mandate vaccines and you potentially own the consequences, make them totally voluntary and you could lose half your workforce to COVID-19 quarantine, or worse.
Big companies and the government alone cannot get America to herd immunity. With one hand, the government giveth its sweeping vision to end the pandemic, and with the other hand, it taketh away the tools to get there.
Follow Steve on Twitter @stevengberman.
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