• NOTE: This article is not presenting a position on the use of vaccines or vaccine mandates.

  UPDATE ON FEDERAL COVID VACCINE REQUIREMENTS

  After several weeks of discussion, the Occupational Safety and Health Administration (“OSHA”) finally released its 490 page emergency rule (or Emergency Temporary Standards “ETS”) mandating all employers with 100 or more employees ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing (at the employers’ expense).  This was one of several vaccine mandates rolled out by the Biden Administration, with the others being for healthcare workers and federal contractors. 

  OSHA’s proposed rule purportedly left the door open to apply the mandate to all employers at a later date.  However, the rule was stopped before it went into effect.  Employers and states filed lawsuits across the country against OSHA’s rule and on Nov. 12 the United States Court of Appeals for the Fifth Circuit issued an order staying the rule’s enforcement.  As a result of this ruling, OSHA suspended “activities related to the implementation and enforcement of the ETS [the emergency rule] pending future developments in the litigation.” https://www.osha.gov/coronavirus/ets2

  Because of the multitude of lawsuits in the federal district courts across the country, the United States Judicial Panel on Multidistrict Litigation conducted a lottery to determine which of the thirteen circuit courts would hear the consolidated cases, picking our very own U.S. Court of Appeals for the Sixth Circuit (the Sixth Circuit covers Kentucky, Ohio, Michigan, and Tennessee).  All the challenges to the OSHA ETS were consolidated and heard before a three-judge panel of the Sixth Circuit in Cincinnati.  Unfortunately, on December 17 the Sixth Circuit dissolved the stay put in place by the Fifth Circuit allowing the OSHA mandate to proceed.

  Immediately after the decision, two hours in fact, a broad coalition of 26 trade groups filed the first of several emergency appeals to the U.S. Supreme Court requesting a stay pending the Court’s review.  In turn, OSHA granted employers extra time to comply with the requirements- January 10 to develop compliant procedures and February 9 to begin testing.

  The U.S. Supreme Court has scheduled oral arguments in the case for Friday, January 7 along with another appeal of COVID vaccine requirements for healthcare workers.  You can listen to the oral arguments before the Court on January 7, here.

  Ohio Vaccine Mandate Update

  The Ohio House of Representatives was considering legislation to do the opposite of the OSHA proposal.  House Bill 435 was introduced to prohibit employers from requiring a vaccine.  It also prohibited the use of vaccine passports to deny entrance into a business or a building owned by the state or local government or service from a business or state or local government.  The bill failed to garner support and stalled in committee in mid October.

  However, HB 435 has been reincarnated in a new bill, HB 218.  Originally drafted to temporarily extend bar hours and exempt bars from a statewide curfew, that language was replaced with nearly identical language from HB 435 in the House Commerce and Labor Committee on Nov. 18 and passed by the committee and the House that same day.  It currently is being heard in the Senate General Government Budget Committee.  The bill has been roundly opposed by many business trade associations as an infringement on employers’ internal management and operations.  Others have said the bill does not go far enough to prohibit vaccine mandates in the workplace.

  For employers, HB 218 prohibits an employer from requiring an employee receive a vaccine, drug, biological product, or a form of genetic immunotherapy that utilizes “messenger ribonucleic acid, deoxyribonucleic acid, or any other genetic vaccine technology and for which the United States food and drug administration has not issued a biologics license or otherwise granted full approval”.  So far, only Pfizer’s vaccine has been issued a biologics license and under the bill, can be required by employers.  For purposes of the bill, an emergency use authorization by the FDA (what all the COVID vaccines originally were authorized under) is not a biologics license nor full authorization by the FDA. 

  Under the bill, if an employer requires a COVID-19 vaccination that has been issued a biologic license, like the Pfizer vaccine, the employee may satisfy the employer’s vaccination requirement by either taking the vaccine or taking a COVID-19 vaccine available under an emergency use authorization.

  HB 218, like HB 435, provides employees the ability to seek an exemption from the vaccine for:

• ·      Medical contraindications; 

• ·      Natural immunity;

• ·      Reasons of conscience, including religious convictions.

The bill also creates a cause of action for unlawful discriminatory employment practice if the employer violates the provisions of the bill summarized above.