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published on November 9, 2021 - 3:55 PM
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Businesses have been waiting for a roadmap within the vaccine mandate recently announced by President Biden.

But yet again, they must live in limbo for a while longer.

On Nov. 6, the US Court of Appeals for the Fifth Circuit filed a petition for review of OSHA’s emergency mandate, stating that it overreached its authority and did not act within the constitutional provisions. The order reads, “The Mandate is hereby STAYED pending further action by this court.”

The order gave until 5 p.m. on Nov. 8 to respond, and for petitioners to file a reply by 5 p.m. on Nov. 9.

“This you know, obviously was filed on an emergency basis, so I think we’re going to probably have a little bit more clarity from the Fifth Circuit on what it’s going to do here and the length of the stay,” said John Ho, co-chair of law firm Cozen O’Connor’s Occupational Safety and Health Administration workplace safety practice group in Philadelphia. “It’s sort of anybody’s guess right now.”

When multiple circuit courts file a lawsuit, the federal courts have a multi-jurisdiction, multi-litigation rule, which says that these cases will get consolidated before one of these circuit courts. Choosing which court will represent the case is done by a lottery system.

“The stay itself does not limit the geographic scope. It doesn’t specifically say this is just a Fifth Circuit issue, but at the same time it doesn’t say this is a permanent injunction,” Ho said.

Most people are interpreting this as the order is enjoined everywhere for the time being.

“I think most of us are looking at this as a permanent junction with clarity to come,” Ho said.

In the meantime, he says employers everywhere, including in California, need to decide whether they will have a mandatory vaccine policy or not. The original mandate allows the employers to choose whether it will offer testing, but the cost of testing falls on the employer.

OSHA has given business owners the choice to pass that cost along to the employees, however Ho said each state and jurisdiction has different requirements. According to the California Department of Industrial Relations, “the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses.”

“One of the big concerns employers have everywhere is labor shortages, particularly in certain industries, like hospitality, restaurants,” Ho said.

If an employer knows their worker population is largely vaccine-hesitant, they have concerns over losing employees because of the mandate.

“That’s a real business consideration that these businesses need to get their arms around,” he said.

John Trenberth, president and CEO of Fresno-based Pana-Pacific, said he will not be mandating the vaccine and will be allowing for weekly testing.

Pana-Pacific is a supplier of original electronic equipment for commercial vehicle manufacturers and dealers.

He said he’s offered both rapid Covid testing and vaccination clinics at Pana-Pacific throughout the pandemic. He said he’s spent a lot of money – it was about $65 per shot and about $60 per swab, but he says both were worth the investment.

“We’ve done on-site testing for months,” he said.

Vaccination clinics have been held three times, via a third party entity.

“We give them every opportunity to get vaccinated,” Trenberth said.

He has about 30 to 35 remote employees scattered throughout the US and Canada who are not bound by mandate requirements, although by standard of the Occupational Safety and Health Administration standards, these employees count toward a business’s threshold of 100 employees.

Trenberth said 83% of employees are vaccinated, leaving 27% who are not. He is willing to offer on-site vaccination again if the number of people opting in warrants that.

Trenberth said the importance of the vaccination lies in that Pana-Pacific is an essential business, and has been since day one. It supplies machinery for the commercial, farm and agriculture industries. He said he was doing his due diligence to be as safe as possible.

“These are worldwide customers,” he said. “We didn’t miss a day.”

Some employers fear being blamed in the heightened political climate, but Trenberth reiterated that employees still have options.

“I guess you’re the bad guy if you’re going to mandate them, but I’m not going to do that,” Trenberth said.

Most of his office staff is vaccinated, and he doesn’t feel comfortable allowing people to work remotely to avoid the mandate since it would divide his workforce.

“I don’t want to segregate the two groups publicly, but the vast, vast majority of office people, if you want to consider that, they’re vaccinated,” he said.

Warehouse staff, like manufacturers everywhere, doesn’t get the option to work from home because of the nature of the job.

“Every employer needs to keep their eye on what’s going on with these legal challenges right now, specifically the Fifth Circuit,” Ho said.

But looking at OSHA’s Emergency Temporary Standard will help business owners draft policies in the meantime, so that if or when the mandate is enacted, they will be ready.

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