As 2021 Winds Down, These COVID-19 Issues Should Be at the Top of Employers’ Minds

Posted: December 29, 2021

As the year winds down, COVID-19 legal changes are occurring at breakneck speed, creating risk and confusion for many employers.  Here are some key legal issues that employers should consider going into 2022.

  • The federal government large employer vaccine-or-test mandate is still the subject of ongoing litigation, but will be enforced by OSHA starting on January 10, 2022

Where we’ve been:

As we previously reported, OSHA issued an Emergency Temporary Standard (“OSHA ETS”), detailing President Biden’s COVID-19 vaccine-or-testing mandate for most large employers (with 100 or more employees).

As a reminder, under the OSHA ETS, covered large employers must either:

(A) require their entire workforce to be fully vaccinated against COVID-19; or

(B) allow employees to choose whether to show proof of vaccination or get tested for COVID-19 weekly and submit their test results. Employees who are not vaccinated must also wear face coverings in certain instances while working.

The ETS also requires large employers to implement written policies and keep certain records, among other obligations. The ETS is designed to be a minimum safety standard at the federal level for most large employers, although there are other federal requirements for certain industries and, as discussed below, state or local laws may be more stringent or conflict. Employees who work remotely, alone, or exclusively outside may have different requirements.

This vaccine mandate for large employers was challenged in the courts but is currently in effect while the matter is pending before the U.S. Supreme Court.

Vaccine mandates were also implemented for employees of federal contractors and Medicare and Medicaid program participants, and these were also challenged in the courts.  Certain stays of these mandates have been implemented.  Accordingly, certain federal contractors and Medicare/Medicaid program participants may not currently be required to comply with those vaccine requirements at this time—although if these employers have at least 100 employees, they may fall under the ETS.

Where we’re headed:

As noted, the large employer OSHA ETS vaccine-or-test mandate is technically in effect for now. However, OSHA has stated that it is delaying enforcement of the first phase of the rule until January 10, 2022, so long as an employer is exercising reasonable, good faith efforts to comply with the standard.

The Supreme Court will conduct hearings on the ETS and Medicare/Medicaid mandate on January 7, 2022, but the Court’s decision may come down after OSHA starts enforcing the ETS on January 10, leaving large employers little time should they need to comply.

Given all this, the safest approach for large employers is to start planning for implementing the OSHA rule should they need to, by choosing their option (vaccination or vaccine-or-test), preparing their policies, and determining how necessary information would be gathered, etc.  As 2022 dawns, many employers are preparing to comply with the mandates by surveying and collecting evidence of employees’ vaccine status (while being mindful of the confidential nature of this information) and updating their policies and recordkeeping processes.  Of course, state and local law may impact this strategy, so companies should consult with counsel before finalizing their approach.

  • Masks are back

Facing a rising wave of infections, many states and localities have ramped up mask mandates.

For example, New York state recently mandated indoor mask use in public places and workplaces, which is currently in effect until at least January 15, 2022.  Under the order, unless companies require proof of full vaccination to gain entry, anyone who enters a space other than a private dwelling must wear a mask indoors regardless of their vaccination status, except when they are eating, drinking, or alone in an enclosed room.

Of note, the order prohibits businesses from taking a “mix-and-match” approach to mask use.  In other words, a business cannot allow fully vaccinated people to go unmasked while at the same time requiring masks for the unvaccinated.

Many other locations have also reintroduced indoor mask mandates. For example, California recently implemented a statewide mandate, as did several municipalities in New Jersey, among others. Companies should closely monitor developments in this area, since things are changing rapidly.

  • New York City’s vaccine mandate went into effect

As of December 27, 2021, the New York City employer vaccine mandate went into effect. The mandate requires that workers who appear onsite at a workplace or interact with the public show proof that they have received at least one dose of the COVID-19 vaccine and, if applicable, a second dose by no later than February 10, 2022. Employees may seek exemptions from the mandate for medical, religious, and other protected reasons, and employers are required to enter into a cooperative dialogue with employees who do so to explore reasonable accommodations, which may include work-from-home arrangements or testing options.

For more information about the New York City Vaccine Mandate, please see our recent client alert, here.

  • Employers Should Keep an Eye on Variations

Other locations have also implemented new requirements, resulting in a patchwork of potentially conflicting and uncertain obligations for employers.  Some of these requirements are industry and job-function-specific, while others vary based on location and municipality.

To navigate the potential legal risks and confusing obligations, employers should closely consult with counsel to address their business and workforce needs.

For more information about this topic, please contact the authors, Jessica Shpall Rosen, Devora Lindeman, and Ian Jones, or your personal Greenwald Doherty attorney contact.