Punching In: Biden-States Shot Clash Traps Businesses in Between

Monday morning musings for workplace watchers

Shot Mandate Crossfire | What Safety Advocates Want

Chris Marr: The pushback against President Joe Biden’s workplace vaccine requirements continues to play out, not only via lawsuits but also in state legislation aimed at limiting employers’ ability to mandate Covid-19 immunization.

Ohio and South Carolina lawmakers could be close to joining nearly a dozen other states that have set legal limits for on-the-job shot requirements. Among those, the Montana and Tennessee legislatures have banned vaccine mandates as a condition of employment, while counterparts from Florida to North Dakota have required employers to offer broad exemptions or accommodations for employees.

The quickly changing legal landscape—with states passing new restrictions while courts consider whether a trio of federal vaccine policies can take effect—only adds to the turmoil for employers trying to operate safe workplaces during the pandemic.

Federal courts have temporarily blocked enforcement of the Biden administration’s vaccine requirements applying to federal contractors and health-care employers, plus the shot-or-test mandate for other large employers. On the other side of the coin, a handful of state and local governments are requiring some private-sector employers to mandate vaccines, such as the policy announced last week in New York City.

“It’s very confusing for employers right now,” said Denise Blommel, an Arizona employment attorney who has advised employers on Covid-19 vaccination mandates. “It’s very confusing for the entire public dealing with this Covid—it’s beyond a pandemic, it’s just a miasma in our country at the moment.”

“The problem has become politicized,” she added.

A South Carolina bill that passed the state’s House Dec. 10 would require employers to grant exemptions to any on-the-job vaccine mandate and stipulate that a worker fired over a vaccine requirement would be eligible for unemployment benefits.

Likewise, an Ohio bill that cleared that state’s House on Nov. 18 would require employers to grant broad exemptions, including for “reasons of personal conscience,” going beyond the religious and disability accommodations required by federal law.

Each bill still needs passage by its state’s Senate.

The political pressures around the issue could motivate more states to restrict workplace vaccine mandates, said Bob Robenalt, an employment lawyer with Fisher Phillips in Columbus, Ohio.

But these proposals also face resistance, including in Ohio, he said. “The business community is pushing back on these bills.”

A wide-ranging Arizona budget bill that included broad exemptions for workplace vaccine mandates was struck down in court for violating legislative rules that limit bills to a single subject. But the state’s legislature may try to revive that effort next year, Blommel said.

Employers in 11 states already need to navigate limits on workplace vaccine mandates—Alabama, Arkansas (taking effect in January), Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia—and the federal mandates aren’t in force pending the final outcome of a slew of lawsuits challenging them.

“At the present time, because all three of the federal mandates have been stayed, our advice is that employers need to comply with their state laws,” Robenalt said.

Also Read

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Health care workers examine a 45 year old unvaccinated Covid-19 patient, after being turned from his stomach onto his back, at the Cardiovascular Intensive Care Unit at Providence Cedars-Sinai Tarzana Medical Center in Tarzana, Calif., on Sept. 2, 2021.

APU GOMES/AFP via Getty Images

Fatima Hussein: Against the backdrop of a worldwide pandemic, the president’s first year in office ushered in major changes on the worker safety front.

A few of the biggest implementations include a pandemic-related emergency temporary standard for health-care workers, the beginnings of rulemaking that addresses workers’ heat exposure on the job and an ongoing legal battle to implement a vaccine-or-shot rule that would affect more than 80 million American workers.

With three more years in the president’s term, safety advocates tell us about the changes they want to see, and will lobby for, from the Democratic administration that has promised to put worker safety at the forefront of its agenda.

Jordan Barab, who served during the Obama administration as an Occupational Safety and Health Administration deputy assistant secretary, said in a phone interview that many advocates are calling for the administration to address the issue of workplace violence.

“It’s a massive problem and preventable,” he said.

The House passed a measure in April that would compel OSHA to issue a rule requiring health-care and social service employers to implement workplace violence prevention plans. The bill has since been received in the Senate where it’s languishing in the Committee on Health, Education, Labor and Pensions.

The administration’s fall 2021 Unified Regulatory Agenda released Dec.10 shows that OSHA is preparing to confer with small businesses about the potential ramifications of such a rule, through the Small Business Regulatory Enforcement Fairness Act.

Some are saying chemical exposure also will be a big issue across occupations.

Iris Figueroa, a staff attorney with Farmworker Justice, said in an email that advocates are lobbying for increased enforcement of the Worker Protection Standard, an existing federal regulation that protects those who labor in agriculture from pesticide exposure.

“Increased funding and expansion of the SENSOR pesticide reporting system, which collects pesticide use and incident report data,” and “ensuring language access by requiring bilingual pesticide labels,” are issues that farmworker advocates have called upon the Biden administration to address, she said in an email.

The call to reduce the use of per-and polyfluoroalkyl substances, widely known as PFAS, are increasing, and state legislatures are following with new laws to protect workers and consumers.

According to the National Conference of State Legislatures, in 2020, state legislatures considered at least 180 bills with language on PFAS and 15 states enacted roughly 27 bills focused on regulating PFAS in firefighting foam and consumer products.

Melanie Benesh, a legislative attorney for the Environmental Working Group, said the Biden administration and federal government should “follow through on its commitments to procure more sustainable products—including products made without intentionally-added PFAS.”

Editor’s Note: “Punching In” will publish Dec. 20 and then take a two-week hiatus for the holidays. We’ll be back in your inboxes for a new year starting Monday, Jan. 10.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.