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Florida businesses with more than 100 employees finally received the guidance they were seeking Thursday when the Biden Administration announced regulations for protecting more than 84 million U.S. workers in the private sector against COVID-19.
The U.S. Department of Labor’s Occupational Safety and Health Administration said workers nationwide face a “grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.”
Under a so-called emergency temporary standard, the government is requiring the following by Jan. 4, 2022. It’s unclear how federal enforcement will play out:
- Employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to either be vaccinated or undergo regular COVID-19 testing. Those choosing to go unvaccinated would need to wear a face covering at work.
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. If positive, employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh in a statement issued Thursday morning.
“We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19,” he said. “Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”
Managements reviewing the rules
Many large South Florida companies had been offering employees financial and time-off incentives to get the their shots, but stopped short of mandating them until the government issued the rules.
On Thursday, several pledged to follow the federal rules but said they needed more time to review them before rolling out their own directives to employees.
Ryder System Inc., the Miami-based transportation logistics firm that employs more than 35,000 people nationally, said it continues to offer workers up to three hours of paid time off for each dose they require.
“We expect this rule to apply to us,” said Frank Lopez, chief human resources officer. “However, like many employers, Ryder has just begun to review the federal vaccination or testing rule from OSHA. Since we are still reviewing how this may impact our employees, it’s a bit too premature to comment on anything specific at this time. Once we have completed our review, we will first communicate to all of our employees.”
Since the pandemic broke out, Ryder has not required employees to be vaccinated, but strongly encouraged them to do so.
At Fort Lauderdale-based AutoNation, the nation’s largest car retailer, more than 90% of its employees are vaccinated, said executive vice president Marc Cannon. Those who receive their shots must register with the company.
“In October we started rolling out boosters and we’ll have boosters for November and December — not just for our corporate employees but for our store employees,” he said.
“We offer everybody a vaccine,” he added. The company accomplished that by offering them at workplace sites with the help of local hospitals.
“At our corporate office we do testing on Fridays for unvaccinated employees,” he said. “We have continued to mandate masks in public spaces in our building. If you are in the elevator or you are going somewhere, you have a mask.”
In meetings, employees are expected to remain socially distant from each other, said Cannon, who added that the new federal rules are under review.
Some employers mandated vaccines for workers before Thursday’s announcement. Brightline, the high-speed South Florida rail service which intends to resume service Monday, is requiring vaccines for more than 200 of its workers.
The sheer breadth of the government program will almost certainly generate enforcement challenges and trigger legal tests in federal courts, legal experts said Thursday.
Florida Gov. Ron DeSantis wasted no time announcing the state of Florida will join a lawsuit with Georgia, Alabama and private plaintiffs to stop the Biden Administration rule. At a press conference in Tallahassee, he asserted the federal government lacks the power to declare and enforce health mandates.
But Peter Meyers, a professor emeritus at the George Washington University Law School in Washington, D.C., and a former director of the school’s vaccine injury litigation clinic, said the U.S. Supreme Court in 1905 upheld a Massachusetts vaccine mandate for adults to get vaccinated against smallpox.
That decision, he told the South Florida Sun Sentinel, “is still good law today.”
He added that federal laws will prevail over any state actions designed to derail U.S. mandates.
“Excuse me, but because we have a federal system in this country that when a federal law conflicts with a state law, the federal law controls,” Meyers said.
In addition, the filing of a suit does not mean a quick halt to the rule, said Roger Feicht, a labor and employment lawyer at the Gunster law firm in West Palm Beach.
“The OSHA Act of 1970 provides that a filing of petition with a [U.S.] Circuit Court of Appeals does not automatically stay this standard,” Feicht said. “The rules will continue to be federal law until a court decides otherwise.”
He acknowledged that “there are a number of businesses that do not agree with the emergency temporary standard.”
But he warned: “They are taking on a legal risk if they don’t comply with the deadline.”
Feicht said he is encouraging all of his clients to comply with the federal deadlines “until we hear otherwise.”
Nonetheless, David Miller, whose law firm Bryant Miller Olive represents local government employers in Florida, fears that employers will be caught in a maw of conflicting federal and state laws.
“We’ve got this overlay of the state laws that purports to forbid employers from requiring proof of vaccination,” he said.
“What is an employer to do when they are faced with an OSHA regulation?” Miller asked. “If he follows it, it is going to expose him to $5,000 fines for every violation.” He noted that Florida has already shown in Leon County “it will maximize those fines.’
“The employers are a bone between two dogs, and they are going to have teeth marks all over from this,” Miller predicted.
As a practical matter, ensuring 100% compliance with the emergency standard is likely to be impossible to achieve, said Michael Elkins, of MLE Law in Fort Lauderdale..
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But businesses already under scrutiny for alleged federal workplace safety violations could well find themselves answering questions about their vaccine compliance.
Elkins said businesses in the construction industry could fall into this category.
Most likely, the agency will rely on whistleblowing employees to report violations.
“If an employee complains, I suspect OSHA will show up,” Elkins said
The fines will be stiff — more than $13,000 per violation, and up $136,000 for “willful” deliberate violations.
“Most violations are going to be considered willful,” Elkins predicted. “It will be a difficult argument that [a violation] was unintentional.”