David Acheson Insists OSHA Vaccine Mandate Faces Strong Headwinds featured image

David Acheson Insists OSHA Vaccine Mandate Faces Strong Headwinds

Denis Storey
November 10, 2021

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Nearly a year after U.S. regulators approved COVID vaccines for mass production and distribution, the Biden Administration wants employers to help “Stop the Spread.”

The Occupational Safety and Health Administration (OSHA) issued its “COVID-19 Vaccination and Testing; Emergency Temporary Standards” (C-19 ETS)  emergency temporary standard (ETS) in November to curb the risk of COVID-19 exposure in the workplace. As a result, “employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.”

David Acheson PhotoThis C-19 ETS applies to private employers with 100 or more employees and, in states with OSHA-approved State Plans, state- and local government employers, as well as private employers, with 100 or more employees. OSHA set Jan. 4 as the deadline for compliance.

OSHA officials estimate the C-19 ETS would result in at least 23 million additional vaccinations, averting more than 6,500 deaths and 250,000 hospitalizations.

Administration officials later revealed in a press briefing that standard noncompliance penalties would amount to $13,653 per violation, while a company found to be willfully violating a standard could face a $136,532 penalty.

But, Dr. David Acheson, President and CEO of The Acheson Group, said that the OSHA vaccine mandate faces “the strongest headwinds of any ETS I’ve ever seen.”

He added that the C-19 ETS seems more about compliance than about managing a public health crisis.

“The ETS chose to ignore the role of natural immunity as a protection against infection,” Acheson said. “It is beyond time to get a better understanding of the value of natural immunity. Especially as one can see from recent studies from the Veteran’s Administration that vaccine- induced immunity may only last a matter of months.”

What are Companies Supposed to Do?

The C-19 ETS requires employers to:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy.
  • Determine the vaccination status of each employee while maintaining an employee vaccination database.
  • Support vaccination by offering employees up to four hours of paid time to get vaccinated and sick leave to recover from side effects.
  • Test unvaccinated employees at least weekly.
  • Require employees to notify employers in the event of a positive COVID-19 test or diagnosis.
  • Immediately remove infected employees from the workplace.
  • Ensure unvaccinated employees wear face coverings when indoors or in a vehicle with another person for work.
  • Provide employees with information about the C-19 ETS requirements, related workplace policies, vaccine efficacy, safety, and the benefits of vaccination, protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within eight hours of learning about them and work-related COVID-19 hospitalizations within 24 hours.
  • Ensure relevant records are available for examination.

OSHA published a FAQ that explains the requirements in greater detail.

HR Challenges to Making it Work

While the idea of a blanket vaccine mandate might seem simple enough, the logistics of implementation are riddled with challenges.

“Unfortunately, the announcement of this mandate is causing both confusion and concern in workplaces across the United States,” explained Emily M. Dickens, chief of staff, head of government affairs, and corporate secretary at the Society for Human Resource Management (SHRM). “Small- and medium-sized employers are especially troubled by the potential for workplace disruptions, the departure of workers who don’t want to be vaccinated, burdensome documentation, and new costs associated with COVID-19 testing.”

Historically, orders such as this don’t have the best track record, Acheson pointed out, adding that more than half of them don’t survive court challenges. Acheson pointed to the Congressional Research Service, which reported that “[I]n the nine times OSHA has issued an ETS [prior to its COVID-19 healthcare ETS], the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.”

And the Fifth Circuit has already issued a temporary stay on the rollout of the C-19 ETS while more than half a dozen lawsuits work their way through the courts. The lawsuits claim that either OSHA exceeded its authority or the C-19 ETS is unconstitutional.

Nevertheless, Acheson added that several legal advisors and HR experts recommend not betting on the courts vacating the ETS and prepare for the Jan. 4 implementation.

“As COVID-19 becomes more of an endemic disease we must deal with it would be helpful to further focus on combination solutions such as ongoing preventive strategies such as masks where appropriate and keeping people out of work when sick, vaccines for those that want them, and wider use of therapeutics early in the disease for those who get sick,” Acheson added.

But SHRM’s Dickens suggests that the obstacles aren’t insurmountable if regulators listen to HR.

“This anxiety can be alleviated by releasing a draft of any proposed mandate and incorporating public comment rather than requiring employers to meet an arbitrary standard drafted outside the normal rulemaking process,” Dickens said. “This would allow the HR community to provide concrete and actionable feedback rather than speculating on a non-existent rule. While this would delay implementation, it would improve the process and give employers adequate time to prepare.”