President Biden stated last week that the Occupational Health and Safety Administration (OSHA) will implement a rule that employers with more than 100 employees will be subject to fines if they do not require COVID vaccinations or test employees for COVID on a weekly basis.
The new mandate raises many issues about workplace law that I touch on below:
Workers’ compensation: Employees who are injured through employer-required testing or vaccination would clearly be covered by workers’ compensation. In order for an injury to be covered by workers’ compensation, an employee needs to be doing something in the course of their employment duties for the benefit of their employer.
Before mandated vaccinations and testing, maybe employers could argue that COVID testing and vaccinations injuries weren’t covered by workers compensation. But mandates firmly shut the door on what I think is a semi-specious argument.
Workers who suffer a reaction from a vaccine aren’t limited to workers’ compensation. They have one year to make a claim against a federal vaccine fund. But employers who pay workers compensation benefits for a vaccine may claim repayment or subrogation from payment from a vaccine fund.
Whistleblower: OSHA will likely rely on whistleblowers to enforce the rule. While there is no general federal right for an employee to sue their employer for retaliating against them for not complying with the mandate, Nebraska has a general whistleblower law that gives employees that right. An employee in Nebraska who was retaliated against for reporting non-compliance with the vaccine mandate has 300 days to either file a charge with the Nebraska Equal Opportunity Commission or file directly in state court.
Workers in certain industries could also have a federal right to sue their employer for not enforcing vaccine and testing requirements.
Americans with Disabilities Act: (ADA) The new employer-mandate still gives some employees the right to opt out of vaccinations under the Americans with Disabilities Act. Vaccine mandates have been part of health care employment for years. Those employees who were exempted from vaccine requirements previously still should be exempted from the new mandate
But as more workplaces are covered by vaccine mandates, I would expect more employees who try to claim exemptions. I would anticipate courts aren’t going to be terribly sympathetic to most of these claims barring a strong medically-related reason for vaccine refusal.
Wage and hour law: The new mandate gives employees paid leave for vaccination side effects. The Fair Labor Standards Act (FLSA) also requires that employers pay employees for time spent on employer-ordered medical care. I anticipate some litigation arising out of this law – particularly if employers force employees to get vaccinated or tested outside of regular work hours.
Is the mandate legal? Fatima Hussein did a good write up on the issue for Bloomberg Legal. Per her article, the mandate is probably constitutional under the interstate commerce clause. But employers may have some grounds to challenge the rule because OSHA may have jumped the gun in implementing the rule without due process.