COVID-19  November 30, 2021

As OSHA mandate works its way through court, some companies implement their own

BOULDER — As the Occupational Safety and Health Administration’s emergency temporary standard mandating COVID-19 vaccines for employees at companies with more than 100 workers makes its way through the federal court system, businesses that would be subject to it are waiting to see how they’ll be impacted. 

The mandate, which was announced last month, requires that employees at those companies either get vaccinated or undergo weekly testing. It was challenged by numerous lawsuits; a judge in the U.S. Court of Appeals for the Fifth Circuit issued a stay preventing its implementation Nov. 6. The various lawsuits were consolidated into a single case that is being heard by the Sixth Circuit.

OSHA had set a deadline of Jan. 4, 2022, for companies to verify their compliance. How that deadline plays out, if at all, will depend on the Sixth Circuit’s ruling on the stay in the coming weeks.

“Businesses should use this time that we have now to plan for this mandate,” said Kathleen Alt, partner at the Boulder-based law firm Berg Hill Greenleaf Ruscitti LLP. “We’re very fortunate to have the time while we’re waiting. Get your HR and IT processes in place now so you’re not in a situation where you have to react.”

Alt said the outcome of the case could hinge on how OSHA’s directive is interpreted. 

“OSHA has a directive to protect the workforce from direct threats of harm,” she said. “It comes down to whether there is a direct threat to the workforce. OSHA certainly has the mandate to regulate workplace safety in the context of, for example, asbestos. Does it have the power to implement regulations to protect workers against exposure to disease and sick co-workers, and are those a direct threat to worker health and safety? It’s going to depend on whether you see it as a direct threat.”

As they wait to see the outcome of the case, businesses can encourage their employees to get vaccinated on their own, said Boulder Chamber president and CEO John Tayer. 

“It starts with an encouragement to get vaccinated for our workforce,” Tayer said. “That’s the best chance we have to continue moving forward economically.”

And, he said, some businesses are taking matters into their own hands and implementing mandates of their own.

One of those is Boulder life sciences company SomaLogic Inc. (Nasdaq: SLGC), whose mandate actually predates the OSHA rule. SomaLogic has about 270 employees and is hiring about five people per week, CEO Roy Smythe told BizWest. Smythe said the company had several reasons for putting its mandate in place.

“The first is that we are a health care company,” Smythe said. “We have been working on COVID in various ways since the pandemic started. We’re in the battle. We all have been believers in the vaccine from the beginning. We all thought this was an important tool to use as quickly as possible. We felt like it made good sense … we’re facilitating the work of vaccine and drug producers. We should put our money where our mouth is.”

There was also the pragmatic consideration that SomaLogic has employees that it simply could not afford to get sick if there was an outbreak at the company, Smythe said.

Smythe said SomaLogic looked at other companies around the country that had implemented vaccine mandates for employees. Some of those mandates had been challenged legally and held up in court, which Smythe said gave SomaLogic leadership the confidence that they faced few risks legally. 

The composition of SomaLogic’s workforce also played a role. As a medical sciences company that employs many doctors and whose CEO is a physician, SomaLogic should set an example for others, Smythe said. 

With its mandate, SomaLogic offers religious and medical exemptions, but does not allow employees to get tested in lieu of vaccination. 

“The whole thing about testing is that if you’re not testing literally every other day, it’s only somewhat helpful,” Smythe said. “Testing once a week is not enough.”

Smythe said that SomaLogic lost “a very small number of employees, in the low single digits” because of the mandate. He said that a greater number of new hires have said that the company’s mandate solidified their decisions or helped them make up their mind about accepting a job at SomaLogic. The company’s mandate has not yet been challenged in court. 

And as the OSHA mandate makes its way through the legal system, Smythe said that other large employers should look into implementing their own. 

“I would tell them to strongly consider it,” Smythe said. “I believe that all of these little things add up, all of these gestures add up. How do you want to approach it as a company? There are three ways: you’re either in, out or apathetic. Being out and apathetic aren’t helpful. That will keep ICU beds full…we’re just trying to be a part of the solution.”

© 2021 BizWest Media LLC

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