Expert: Targeted vaccine mandates on OSHA radar

The U.S. Supreme Court's decision to strike down the Occupational Safety and Health Administration's proposed vaccination mandate for private businesses was met with some sighs of relief across the rubber industry. Now, as OHSA withdraws the mandate and steps back to re-evaluate how to move forward, businesses and their respective associations are keeping an eye on the progress.

"Vaccination is a high priority for processors, in the sense that they overwhelmingly do not want it to be mandated," Tony Robinson, analytics director with the Association of Rubber Products Manufacturers, told Rubber News recently. " … There are legal gray areas with HIPPA, which they believe will be huge headaches. Who pays for the test and the paperwork? Insurance companies? The company?"

While it's unclear exactly what steps OSHA will take next, Aaron Goldstein, a partner in the international law firm of Dorsey & Whitney L.L.P., suspects that the regulations will be revised to establish guidelines and mandates that target specific types of workplaces.

"With the U.S. Supreme Court's unambiguous ruling that OSHA's current test or vaccinate rule will not survive judicial scrutiny, OSHA had no other realistic option than to withdraw that rule," Goldstein said. "The U.S. Supreme Court held that a broad test or vaccinate mandate that does not differentiate between workplaces with a lower level of risk of infection and harm, and workplaces with higher risks, will not survive judicial scrutiny."

Businesses most primed for vaccine mandates or stringent regulations are those that are most crowded—bars and restaurants, for instance. Moreover, those places that serve or employ a significant number of elderly or immune compromised individuals could expect to see some refined vaccine-related regulations, he said.

SCOTUS, Goldstein added, was willing to uphold the vaccination mandate for hospitals and health care facilities receiving Medicare and Medicaid funding. Further, the ruling striking down OSHA's mandate may have forced the administration to withdraw the rule, but provided some room for OSHA to pivot.

"In ruling against the OSHA mandate, the Supreme Court left the door wide open for more targeted regulations," Goldstein said. "As the Court explained: 'Where the virus poses a special danger because of the particular features of an employee's job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.' "
 

In the meantime, the National Association of Manufacturers continues with its push to encourage manufacturing sector employees—and all Americans—to get vaccinated and continue with safety protocols such as routine handwashing and mask wearing.

"(SCOTUS') ruling does not change the fact that getting vaccinated is the best defense against COVID-19 and central to our ability to keep businesses and schools open and prevent our hospitals from being overwhelmed," Jay Timmons, NAM president and CEO, said in a statement.

" … We call on all Americans to make the choice to get vaccinated, get boosted when eligible and wear the appropriate mask in public places—so that we can save lives, protect our economy and get through this latest wave of infection," Timmons added.

NAM's This is Our Shot campaign taps the power of social media (#ThisIsOurShot) and uses short videos to spread the word about the importance of COVID-19 vaccinations and boosters.

Further, NAM's Manufacturing Institute, in collaboration with the University of Florida Center for Public Interest Communications, has developed additional resources for manufacturers in an effort to help them encourage vaccinations among the work force and the communities in which they have a presence.

"Manufacturers have a profound commitment to protecting employees and communities. It's why we have been at the forefront of innovating and sustaining safe workplace practices from the very beginning of the pandemic and promoting the benefits of getting vaccinated," Timmons added. "That's how we have been able to continue delivering for the American people—even when the challenges seem insurmountable."

On the vaccine effort, NAM chose to lead by example, requiring association employees to get vaccinated. In an interview with CNBC in August, Timmons noted that 100 percent of employees complied with the requirement. It was an achievement he said the association was proud of, but he understood the difficult decisions that some employees had to make.

He also understood that NAM may have to face the difficult decision of letting someone go if they refused to comply with the requirement without being able to present proper religious or medical grounds for doing so.

"We were prepared to do that at NAM, and we understood that there were those who felt that they were not going to get the vaccine and they didn't have medical or religious reason for doing so," Timmons said. "We didn't have that issue, and I don't think that is going to happen in most cases. (But) it is consideration."

In the same interview, Timmons contended that a vaccinated work force may give employers a leg-up throughout the labor shortage. Perhaps one of the best ways to do that, he said, is by offering incentives to employees who receive the vaccination.

"We have a very severe worker shortage in our country right now. It is why the NAM has been so focused on our Creators Wanted campaign, to attract that next generation of manufacturing workers," Timmons said. "And we are in competition now all across every sector for workers. But, in the end, it's better to have live employees than sick or dead ones. So this is something I think all employers are going to be grappling with."

The entire 8-minute interview is available for viewing at NAM.org.