Waitress in a maskIn keeping with his candidate promises, President Biden’s new appointees issued new COVID-19 regulations. Under the prior administration, the EEOC concluded an employer could require an employee to be vaccinated as a condition of employment. While subject to certain limitations, such as accommodations for medical conditions and religious objections, this was a significant win for employers as they tried to return to normalcy.

Lack of consistency among government agencies

The EEOC’s pronouncement was seen as giving employers the approval to encourage vaccination. BJ Zarvis of Pewter Mug restaurant, “I saw this information as a way to give me, my employees, and my customers some comfort knowing that they were coming to a safe place.”

But then OSHA, under the new Biden administration, announced that any employer that created a mandatory vaccination plan would be subject to OSHA reporting rules if there were any adverse effects from the vaccination. Any lost days would be reportable, which potentially subjects the employer to higher insurance rates and fines. “When I heard about OSHA’s position,” said Zarvis, “I decided it wasn’t worth it to make it mandatory.”

Luckily, OSHA’s position took considerable heat from the public, across the political spectrum, such that it finally announced it was rolling back its position and not making adverse effects from a mandatory vaccination program reportable. So employers like Zarvis can again consider the pros and cons of making vaccinations mandatory.

What is keeping employers from mandating vaccinations?

For some employers such as Dave Peck, who owns D. Peck Roofing, it’s a combination of things. “I had some employees who had just didn’t feel comfortable taking the vaccine, especially when they started to hear about some people have serious side effects. They said they would quit if they had to be vaccinated.” Peck says that the threat of losing his staff was a major consideration. “Labor is difficult to find,” said Peck. “I decided just to encourage vaccination. Most people got vaccinated, and we work outside and not around many customers, so I’m just hoping that will be enough to make the workplace safe.”

The experience of Peck and Zarvis is typical of employers, especially in Florida. Those employers who have a lot of customer interactions have the most daunting of tasks. On the one hand, they want to make their customers feel safe. On the other hand, they want employees. If they don’t have enough staff, they can’t serve customers anyway.

OSHA Guidance and Rules

Employers are again faced with government pronouncements that make COVID-19 policies difficult to implement. Upon ascension to the presidency, President Biden instructed OSHA to implement tighter COVID-19 safety rules to protect workers. Hence, the temporary guidance — as opposed to a rule – is still mandatory and can result in fines. The guidance, however, was followed by a statement that tougher rules were in the works. While many of my clients were anxiously awaiting what OSHA was going to do, they already stepped up enforcement under the rules already in place.

Stricter rules for the health care industry

VaccineThe new Rule finally made its appearance in mid-June 2021. Much to the delight of employers, and the dismay of safety groups, OSHA essentially punted. Rather than making the new more restrictive rule apply to industry in general, its scope has been limited to the health care arena. Health care is already under significant regulation. This is not as significant as placing heightened obligations on businesses like the hospitality industry.

This is attributable to the widespread success of vaccination. With so many people being vaccinated, there is pressure to eliminate all mandatory mask-wearing. These new regulations, while recognizing and limiting restrictions for vaccinated individuals, would have made that problematic.

Six months ago, few people were vaccinated. The President tried to show the importance of mask-wearing by making it mandatory at airports. Now, the public is seeking normalcy. It is anticipated the Biden administration will try to lever back restrictive regulations and instead begin to focus on post-COVID issues. In other words, expect the administration, and especially the new Labor Secretary (and former union leader) Walsh, to begin to work on their aggressive domestic agenda.

Insurgence of Delta variant

But just when things seemed to be moving away from COVID issues, the emergence of the Delta variant of COVID has caused the Biden administration to potentially have to hit the pause button. In late July, the CDC updated its recommendation for fully vaccinated people to wear a mask in public indoor settings in areas of substantial or high transmission. They also recommend universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status.

Employers needing guidance in this area may contact me at scott.atwood@henlaw.com or by phone at 239-344-1287.