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Unvaccinated Health-Care Workers Test Emergency Standard Bounds

Aug. 23, 2021, 4:25 PM

As OSHA enforces its emergency temporary standard aimed at shielding health-care workers from Covid-19, industry attorneys say the rapid spread of the delta variant has made that regulation all the more necessary to quell proliferation of the virus.

Complicating matters, however, a large swath of health-care workers—more than 40% of nursing home staff nationwide—weren’t fully vaccinated as of Aug. 15, according to U.S. Centers for Disease Control and Prevention data.

How the U.S. Occupational Safety and Health Administration will enforce the standard and guide employers in the face of that resistance is now the pressing issue, attorneys say.

“OSHA’s ETS requires healthcare employers to protect all workers, whether the workers are vaccinated or not,” a Labor Department spokesperson said in an email. While the emergency temporary standard encourages employers to give workers time off to get their shots, it doesn’t require workers to actually be inoculated.

“The ETS doesn’t provide the degree of help for employers that I would’ve liked to see with respect to mandatory vaccination policies and with respect to mixed contact of vaccinated and unvaccinated workers,” Manesh Rath, a safety attorney at Keller & Heckman LLC in Washington, said in a phone interview.

OSHA Aug. 13 released updated guidance to employers designed to help them protect workers who are unvaccinated or those who are vaccinated but in areas of high Covid-19 transmission.

The guidance recommends that fully vaccinated workers in areas of substantial Covid-19 transmission wear masks to protect unvaccinated workers, recommends workers who’ve been exposed to the virus wear masks for up to 14 days, and clarifies recommendations to protect unvaccinated workers in manufacturing, meat, and agricultural processing.

Still, that Aug. 13 update isn’t enough to help employers craft policies to avoid OSHA citations under the ETS, Rath said.

“Employers would benefit from clearer guidance,” he said. “The problem that is created by this absence of helpful guidance is that employers have to craft their own policies without knowing whether or not they can rely on agency guidance as a defense that shows they’re making their best efforts to comply with the law.”

Less than a week after that OSHA update, the Biden administration announced plans to require nursing homes to vaccinate their staff against the coronavirus in order to receive federal funding. The new requirement will apply to more than 15,000 facilities that participate in the Medicare and Medicaid programs.

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

Navigating Workers’ Refusal

Tashwanda Pinchback Dixon, a partner at Balch & Bingham LLP in Atlanta, said she believes the ETS provides enough guidance to assist employers that have a mix of vaccinated and unvaccinated workers.

Her advice to employers: “I’d treat all employees as if they were unvaccinated and develop procedures along those lines.”

Dixon said she refers employers to OSHA’s January 2021 guidance which was subsequently updated in June, adding, “Generally, I think it’s a thorough guidance” that predates the delta variant. “Most of my clients that had essential workers or brought them back in 2020 already put together procedures and a plan on how to isolate,” she said. “All of that is relevant even now.”

There’s been a “shift to more and more employers mandating a vaccine because of the realization that variants will continue to pop up,” said Lawrence Halprin, a safety attorney also at Keller & Heckman.

Generally, workers can be fired or disciplined for refusing vaccination mandates if they don’t fall into several exemptions, including having a qualified disability or holding a religious belief that they can’t be vaccinated.

If an employee has a qualified disability or exemption that renders them unable to perform essential functions, Rath said theoretically, they may not be entitled to employment.

“Thus, if a vaccination were determined to be a critical prerequisite to a job function,” especially for health-care workers who are in constant contact with the virus, “then that employee may not enjoy continued rights to employment, and that would also require an employer to show the essentiality of vaccination for that job function,” he said.

Unvaccinated Workers’ Rights

Employer mandates have spurred some health-care workers to fight in court.

A group of 117 workers sued Houston Methodist Hospital in Montgomery County, Texas, June 1, after the hospital system mandated the vaccine.

The plaintiffs claim they have “been threatened for choosing not to take an FDA unapproved experimental vaccine which federal law states cannot be mandated because insufficient trials have been conducted and its long-term effects are not known.”

U.S. District Judge Lynn N. Hughes tossed the case in June and the workers have since appealed to the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

National Nurses United, a labor union claiming a membership of more than 175,000, favors vaccination, albeit with exceptions, spokeswoman Rachel Berger said via email.

“We strongly believe all eligible people should be vaccinated, while respecting the need for medical and religious accommodations,” Berger said. “Science shows that a multiple-measures approach to infection control is the most effective, and vaccination is just one, albeit critical, component.”

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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