WASHINGTON — The baking industry is preparing for the Occupational Safety and Health Administration’s (OSHA) vaccine mandate, though the future of policy is now unclear.
OSHA suspended enforcement of the mandate last week following a federal court ruling. Dozens of objections have been filed against the mandate by state governments and business organizations, including the Food Industry Association, and the 6th Circuit Court of Appeals was selected Tuesday to consider these challenges. This comes after the 5th Circuit Court issued an emergency stay against the order earlier this month.
The White House is yet to comment on the mandate’s suspension, but OSHA said it “remains confident in its authority to protect workers in emergencies.”
The mandate would require businesses with 100 or more employees to enforce a mandatory COVID-19 vaccination policy or weekly testing for unvaccinated workers, starting Jan. 4. Unvaccinated workers would be required to wear a mask on the job starting Dec. 6.
The order would preempt any state or local requirements that ban or limit employers from requiring vaccination, face coverings or testing.
The mandate follows President Biden’s announcement of the policy in September, which would affect more than 80 million private sector workers in addition to federal employees and contractors. OSHA expects the policy to result in 23 million individuals becoming vaccinated and estimates it will prevent over 6,500 deaths.
The American Bakers Association (ABA) has raised concerns about the policy since its announcement. In September, ABA joined other trade associations in asking OSHA to reconsider its decision not to accept their input on the mandate. And in October, the ABA and other food industry groups sent a letter to the Office of Management and Budget (OMB), expressing concern that the mandate would harm an already stressed workforce landscape.
In an ABA webinar on the mandate, Peter Susser, chair of the International Employment Law Practice Group, questioned the specifics of the mandate and its likelihood of being implemented.
“There’s a very substantial question as to whether OSHA can win,” Susser said.
Still, Mr. Susser said bakers need to prepare for the mandate’s implementation.
“Doing nothing in terms of preparation would definitely be a mistake,” Mr. Susser said. “There could be a scenario where the mandate pops into place fully. I would certainly be studying all of these issues and preparing a policy, preparing what my next steps will be.”
Mr. Susser expects a ruling to come from the 6th Circuit of Court in the next several weeks, but other parties could challenge the mandate again if it’s upheld. The suspended mandate requires employers with at least 100 employees to ensure their workers are either fully vaccinated or providing a negative test result at least once a week starting Jan. 4.
Employers would not be required to pay for tests but would be required to provide paid time off for employees to get vaccinated and recover from any side effects. Employees that work from home are excluded from these requirements, as well as those with religious and medical exemptions, but are included in the 100 employee count.
The mandate would require employers to determine the vaccination status of all its employees, which Mr. Susser noted is not violation of the Health Insurance Portability and Accountability Act (HIPAA). Employees must provide acceptable proof of vaccination, such as their vaccine card, or they will be considered unvaccinated. Employers would be required to maintain records of employee vaccination status while OSHA’s mandate is in effect.
Regardless of whether the mandate is implemented, Managing Director of Food and Import Safety at Leavitt Partners David Acheson said it’s time for bakers to prepare for COVID-19 becoming endemic like the flu.
“We have to learn to live with it,” he said. “We have to think about our long-term strategy around managing this in an environment where the workforce and its culture are key to our success.”