Why Some Employers Are Waiting Out OSHA's Vaccine Mandate

After unveiling its emergency temporary vaccine standard on November 4th, the Occupational Health and Safety Administration is facing prospective legal challenges as well as pushback from employers who worry that such sweeping mandates could lead to employee turnover, says Construction Dive.

Legal experts believe many employers will hold off on implementing vaccine requirements until an injunction is potentially issued, but other attorneys who spoke on the announcement at a virtual media event say that waiting for legal battles before executing on executive requirements could prove to be a risky gamble. 

In the hours after the Occupational Safety and Health Administration unveiled its emergency temporary standard requiring some employers to implement COVID-19 vaccine mandates, a key question emerged: How exactly is an agency of approximately 1,850 inspectors supposed to enforce something this sweeping?

It is something employers are considering ahead of the Jan. 4 deadline — though much of what the gigantic, 490-page document requires will actually need to be put in place 30 days from the date of publication, said Alana Genderson, associate at Morgan Lewis. The 30-day deadline applies to all sections of the ETS except for paragraph (g), which requires employees who are not fully vaccinated to be tested for COVID-19.

But waiting for legal battles carries risk, particularly if an employer has not previously experienced an OSHA inspection, Travis Vance, partner at Fisher Phillips, said during a virtual media event Thursday. Such employers "may flaunt the concept that there is a standard that they simply cannot comply with," he noted, due to potential turnover or other concerns. "If an employer completely ignores this, OSHA is ready to send a message to bad actors."

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