WILL Sues Over Federal Vaccine Mandate

The federal government released its new temporary standard requiring COVID-19 vaccinations or regular testing at workplaces with 100 or more employees Thursday.

In response, a national worker safety organization called for a tougher regulation that would incorporate the insights of employees on workplace conditions. Meanwhile, a conservative Wisconsin law firm that has repeatedly fought in court to block public health measures filed a federal lawsuit to stop the new safety regulation.

The Occupational Safety and Health Administration (OSHA) published the new safety standard in the Federal Register Thursday, putting it in effect immediately.

The temporary standard requires employers to provide workers with paid time off to get vaccinated and paid leave to recover from vaccination side effects.

Employers also must:

• Track the vaccination status of employees, including collecting and maintaining records proving vaccination.
• Require all employees diagnosed with or testing positive for COVID-19 to promptly notify the employer. Employers must then remove those employees from the workplace, whether they have been vaccinated or not, and not allow them to return until they have had a negative COVID-19 test as well as met other criteria.
• Require unvaccinated employees to be tested at least once a week for the coronavirus and report the results.
• Require unvaccinated employees to wear masks indoors or in vehicles with other people when working.

OSHA’s announcement stated that the new standard would protect more than 84 million workers in the U.S.

Employers have 30 days to comply with most of the regulation, and 60 days to comply with the testing requirement. Violators could face fines of $13,000, or more than 10 times that amount if the violation is “willful.”

The National Council on Occupational Safety and Health (National COSH) welcomed the new standard, but with reservations. The worker-safety advocacy organization said the experience of employers who have already mandated vaccines suggests that the OSHA requirement will increase vaccination among U.S. workers.

“We’re glad to see this standard include paid time off for workers to get a vaccine and recover from any side effects,” Jessica E. Martinez, co-executive director of National COSH said in a statement from the group.

But Martinez said the rule should require employers to pay for face masks or for the cost of COVID-19 testing for unvaccinated workers, which it does not. Employers have routinely been required to cover the cost of tests and screening for occupational illnesses and for protective gear, and the COVID-19 pandemic “should be no different,” she said.

Marcy Goldstein-Gelb, also a National COSH co-executive director, said that in place of its “narrow focus” on vaccinations and individual workers, OSHA should take a broader approach to workplace COVID-19 safety and highlight “every employer’s legal responsibility to provide a workplace free from recognized hazards.”

The organization quoted a poultry plant worker who reported that COVID-19 safety protocols such as physical distancing and the use of sanitation stations were ignored where she worked under the pressure for maintaining production speeds. “Every one of us in my plant — every single worker — has been infected with COVID-19,” the worker said, according to National COSH.

Goldstein-Gelb said that an effective safety plan should start with employers listening to workers, “who know how work gets done and how to make their workplaces safer.”

While advocates urged stricter workplace safety measures in the face of COVID-19, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in federal appeals court in Chicago Thursday to block the new rule. The organization has repeatedly sued Wisconsin and local municipal health departments to overturn public health orders, including mask mandates — sometimes successfully, sometimes not.

In a statement, WILL’s president and general counsel, Rick Esenberg, called the temporary safety standard “illegal and unconstitutional,” charging that it “circumvents the normal legal process.”

The lawsuit was filed on behalf of Tankcraft and Plasticraft, manufacturers in the Walworth County community of Darien. Tankcraft was the site of a rally in August 2020 when then-Vice President Mike Pence came to Wisconsin to stump for Donald Trump’s re-election campaign.

A WILL announcement of the lawsuit included a statement from Steve Fettig, an executive of the two companies, who called the rule “interference of a federal bureaucracy” and said the firms “respect our employees’ fundamental right to make their own private, difficult medical choices.”

Such lawsuits are “misguided,” however, said Goldstein-Gelb of National COSH. “OSHA has the authority to create federal regulations for workplace safety standards to protect workers, especially during a pandemic.”

OSHA workplace vaccine mandate faces lawsuit was originally published by the Wisconsin Examiner.