These actions come after the rapid spread of a new bird flu that first emerged in late 2020, killing a large number of wild birds and domestic poultry. In 2024, the virus began infecting several mammal species, including cattle. The virus has infected a large number of cattle in nine states and two dairy employees.

罢丑别听聽estimates that 20 percent of the U.S. milk supply shows signs of the virus, which could indicate a wider spread in dairy cows around the nation. Officials say pasteurized milk remains safe because the pasteurization process kills the virus. The virus can live in raw, unpasteurized milk.

Source:

In its ruling in National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al., the court granted the applications to stay the OSHA rule mandating that employers with at least 100 employees require covered workers to receive a COVID鈥�19 vaccine or undergo weekly testing.

In Joseph R. Biden, Jr., President of the United States, et al. v. Missouri, et al., the court ruled the government鈥檚 vaccine mandate for workers at federally funded health care facilities that accept Medicare and Medicaid can take effect.

 January 4, 2022 – SHORTLINER

High Court to Rule on Vax-or-Test Order

The Supreme Court will decide if elements of the White House plan to mandate vaccinations or regular COVID testing in some workplaces will stand.

The court will hold a hearing this Friday (Jan. 7) to review numerous legal challenges against two of the vaccine mandates.

President Biden earlier this year ordered OSHA to impose an emergency temporary standard (ETS) that requires employers with 100 or more employees to ensure all workers are vaccinated against COVID-19 or mask in the workplace and submit to regular testing.

Also being considered at the hearing will be a mandate addressing health care facilities that employ workers paid through Medicare and Medicaid programs.

A mandate requiring federal contractors and subcontractors to assure workers are vaccinated is not included on the agenda of the Supreme Court hearing, but enforcement of that order remains blocked by a preliminary injunction.

Among opponents of the mandates are 27 state attorneys general and governors, business and religious coalitions, and national industry associations such as the National Retail Federation, the American Trucking Associations and the National Federation of Independent Business.

At least until the hearing, the mandates are in effect. It is possible that justices will decide then to stay the orders until they issue a decision.

In the meantime, states that operate OSHA-approved workplace safety programs must by Friday notify the federal OSHA organization how they will proceed with the ETS. The deadline to begin enforcement is January 24.
In remaining states, OSHA will move to implement the ETS.

Employers with more than 100 employees are encouraged to monitor legal developments, review and update COVID-19 protocols related to vaccines and testing, communicate with employees, and decide how to best implement testing for the unvaccinated.

Sources: EHS Today, Pioneer Equipment Dealers Association

President Joe Biden signed two executive orders earlier this month and broadly signaled efforts to require employers to take significant steps to curb COVID-19.

While the pronouncements impact numerous workplaces, such as federal offices and health care settings, the most notable impact for Association members are the regulations for federal contractors and private employers with more than 100 employees. Guidance for these two groups is forthcoming, but we wanted to share what we know thus far.

Private Sector Employers with at Least 100 Employees

Presidents can get around including Congress in regulatory decisions for the private sector by using existing federal agencies such as the Equal Employment Opportunity Commission or the National Labor Relations Board. In this case, Biden selected the Department of Labor鈥檚 Occupational Safety and Health Administration (OSHA) in the name of workplace safety.

OSHA has been charged with developing rules that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on a weekly basis. The negative-test alternative likely will serve as accommodation for employees with religious or health-related objections.

In the coming weeks, OSHA will issue an emergency temporary standard to implement this requirement, which can remain in place for up to six months before more formal regulations must be installed. That six months will offer employers opportunities to comment.

OSHA is also directed to establish a rule that will require all such employers to provide paid time off to permit workers to get vaccinated or recover from post-vaccination side effects. This requirement previously applied to certain health care employers, but the rule would expand the requirement to all large employers.

While there almost certainly will be legal challenges to the regulations, OSHA鈥檚 authority to protect the safety of the workplace is broad, and employers should not assume implementation and enforcement will be tied up in the courts. For unionized workforces, federal law will limit a union鈥檚 ability to negotiate over implementation of a vaccine mandate, though there may be room for discussion about the consequences of this rule, often referred to as 鈥渆ffects bargaining.鈥�

The federal government has not given us a preview of the forthcoming regulations, but it is not too early for applicable employers (i.e., those who are federal contractors and have 100-plus employees) to start considering whether to mandate vaccinations altogether or permit weekly testing as an alternative.

OSHA will likely provide guidance on who would bear the cost of such testing, but there is a reasonable chance that employers must do so, either pursuant to OSHA鈥檚 regulations or state law.

That said, some states offer free testing, including both on-site and kits to test from home. In the short term, members ought to consider the testing options available in your location, which may influence whether to mandate vaccinations altogether or permit this alternative.

Federal Contractors

Presidents have broad authority to regulate contractors through their procurement powers, effectively creating rules for the organizations with which they do business.

Biden established the Safer Federal Workforce Task Force in January, which issued guidance for federal workforces. His latest executive orders extend the task force鈥檚 jurisdiction to federal contractors. Furthermore, it directs the task force to implement 鈥渁 program to require COVID-19 vaccination鈥ith exceptions only as required by law.鈥�

The exceptions are a nod to the requirements under Title VII of the Civil Rights Act to accommodate religious conflicts and under the Americans with Disabilities Act to accommodate health- related impediments to receiving the vaccine. But the directive does not appear to permit any other accommodations, such as weekly testing as an alternative, or relaxed requirements for teleworkers.

The task force鈥檚 guidance will arrive in the coming weeks. In the meantime, federal contractors should prepare for the requirement to mandate vaccinations in their workplace.

David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Association members are entitled to 60-minute, no-cost, confidential consultations with the attorneys. Call the firm at (612) 305-7500.

Business leaders broadly agree they need to get more workers vaccinated to keep the U.S. economy humming, but they鈥檙e split over how best to do that.

Some are dangling bigger bonuses or other incentives to cajole employees into getting the COVID-19 vaccine. Others have started requiring it.

Cleveland-Cliffs Inc. introduced an incentive program that offers employees $1,500 to get vaccinated, and $3,000 if a mill achieves 75 percent participation.

Companies from Arkansas-based Walmart to Microsoft Corp. have imposed vaccine mandates mostly on white-collar workers returning to offices. Meatpacker Tyson Foods Inc. took a harder line, saying all its workers must get the vaccine by Nov. 1.

鈥淲e did not take this decision lightly,鈥� Donnie King, Tyson鈥檚 chief executive, wrote in a memo to the company鈥檚 roughly 120,000 U.S. employees. 鈥淲e have spent months encouraging our team members to get vaccinated鈥攖oday, under half of our team members are.鈥�

These strategies come with risks for employers, their workers and their customers, and their outcomes could shape the course of the pandemic.
More than a third of American adults have not been vaccinated, according to recent U.S. data. Firms using a lighter touch risk workplace outbreaks. Those mandating shots risk losing workers in a tight job market.

Each CEO cites myriad reasons for their vaccine strategy, though many also point to new Centers for Disease Control guidelines relating to how vaccinated people transmit the Delta variant.

Some want to prevent worker illnesses or absences from crippling their operations. Others want to end remote work. Still others face complications related to union rules.

Walmart executives didn鈥檛 make the COVID-19 vaccine mandatory this spring in part because executives worried it wasn鈥檛 readily available to all who wanted it and wasn鈥檛 yet fully FDA approved, said a person familiar with the matter. Earlier this month, Walmart said it would require vaccines for U.S. corporate staff and regional managers. It is not mandating the shots for store workers.

A Walmart spokesman said the company hopes that by asking executives to be vaccinated, they will 鈥渋nfluence even more of our frontline associates to become vaccinated.鈥�

Walmart is offering a $150 bonus to employees who get the shot.
Some U.S. airlines are requiring vaccines for new hires but not existing staff. Manufacturing giants such as General Electric Co., Caterpillar Inc. and the big three U.S. automakers have said they aren鈥檛 mandating vaccines.

Snap-on Inc., a Wisconsin-based high-end tools manufacturer with a largely blue-collar workforce, won鈥檛 mandate the vaccine, says Chief Executive Nicholas T. Pinchuk, because he believes such a move would backfire.

鈥淚 don鈥檛 think the way to do it is to tell people, somehow because they don鈥檛 get the vaccine, they are flawed,鈥� Pinchuk said. 鈥淭hey don鈥檛 respond to that.鈥�

He instead talks up the benefits of the vaccine. The company has offered employees time off to get the shot. Snap-on鈥檚 overall vaccination rate is above the national average, with more factory workers than corporate staff having received it.

Companies mandating vaccinations for workers represented by labor unions must negotiate those requirements.

Labor union leaders have sent mixed messages on vaccine requirements. Some have insisted such changes be reached only through collective bargaining, while others have come out publicly in support.

General Motors Co. and its rivals have decided to reinstate mask wearing across their workforces after discussions with a joint task force of the UAW union.

A UAW spokesman said a vaccine mandate would be subject to negotiations with union officials, although the union is encouraging the shots.

U.S. employers can require all workers present in a workplace be vaccinated against COVID-19, according to the Equal Employment Opportunity Commission.

Most companies say they will allow for health and religious exemptions, and some are still determining how they will respond to workers who do not comply.

Lourenco Goncalves, the Cleveland-Cliffs CEO who started what he characterizes as the 鈥渕ost generous vaccine incentive program in the world,鈥� said he isn鈥檛 mandating the vaccine because he doesn鈥檛 need every employee to get the shot to lower chances of outbreaks at worksites.

Goncalves said about 60 percent of the company鈥檚 25,000 workers have been vaccinated as of late last week, although some mills had more success than others. Nineteen of the company鈥檚 46 work sites now qualify for the full cash incentive. The incentive program expired Saturday.

Sources: Northwest Indiana Times, Wall Street Journal

In recent days, companies from Arkansas-based Walmart to Microsoft Corp. have imposed vaccine mandates mostly on white-collar workers returning to offices. Meatpacker Tyson Foods Inc. took a harder line, saying all its workers must get the vaccine by Nov. 1.

鈥淲e did not take this decision lightly,鈥� Donnie King, Tyson鈥檚 chief executive, wrote in a memo to the company鈥檚 roughly 120,000 U.S. employees. 鈥淲e have spent months encouraging our team members to get vaccinated鈥攖oday, under half of our team members are.鈥�

Both strategies come with risks for employers, their workers and their customers, and both could shape the course of the pandemic.

Contributing to the different strategies are challenges that are sometimes unique to an industry and sometimes universal: customer/client relations, the need to remain fully staffed and operational, a fear of losing employees, a desire to end remote work, unions, and more.

Walmart executives didn鈥檛 make the Covid-19 vaccine mandatory this spring, but recently, it said it would require vaccines for U.S. corporate staff and regional managers. It isn鈥檛 mandating the shots for store workers.

Walmart鈥檚 vaccination rate is slightly higher than the national average, according to people familiar with the matter. However, with 1.6 million U.S. employees, that means hundreds of thousands of cashiers, truck drivers, warehouse loaders and other frontline staff likely have not gotten the vaccine.

Walmart is offering a $150 bonus to employees who get the shot.

Some U.S. airlines are requiring vaccines for new hires but not existing staff. Manufacturing giants such as General Electric Co. , Caterpillar Inc. and the big three U.S. automakers have said they aren鈥檛 mandating vaccines.

Snap-on Inc., a Wisconsin-based high-end tools manufacturer with a largely blue-collar workforce, won鈥檛 mandate the vaccine, says Chief Executive Nicholas T. Pinchuk, because he believes such a move would backfire.

鈥淚 don鈥檛 think the way to do it is to tell people, somehow because they don鈥檛 get the vaccine, they are flawed,鈥� Pinchuk said. 鈥淭hey don鈥檛 respond to that.鈥�

He instead talks up the benefits of the vaccine. The company has offered employees time off to get the shot. Snap-on鈥檚 overall vaccination rate is above the national average, said Pinchuk, with more factory workers than corporate staff having received the vaccine.

Companies mandating vaccinations for workers represented by labor unions, such as Tyson, must negotiate those requirements. About 36,000 Tyson employees, or a quarter of its workforce, are unionized or covered by collective bargaining agreements.

Labor union leaders have sent mixed messages on vaccine requirements. Some have insisted such changes be reached only through collective bargaining, while others have come out publicly in support.

General Motors Co. and its rivals have decided to reinstate mask wearing across their workforces after discussions with a joint task force of the United Auto Workers union. A UAW spokesman said a vaccine mandate would be subject to negotiations with union officials. He said the union has encouraged workers to get vaccinated.

U.S. employers can require all workers physically present in a workplace be vaccinated against Covid-19, the Equal Employment Opportunity Commission said earlier this year.

Most companies say they will allow for health and religious exemptions, and some are still determining how they will respond to workers who do not comply.

A Tyson spokesman said the company will continue to educate its employees about vaccinations, address their concerns, and will consider requests for exemptions on medical and religious grounds, but that vaccinations are a condition of employment.

At steelmaker Cleveland-Cliffs Inc., CEO Lourenco Goncalves started an incentive program at the start of July with the goal of getting at least three-fourths of the roughly 25,000 employees vaccinated. Workers will receive $1,500 bonuses if at least 75 percent of the employees at their work sites receive the vaccine. For sites where at least 85 percent of coworkers receive the vaccine, the bonus increases to $3,000.

So far, just under 50 percent of all employees have been vaccinated, up from 35 percent when the program started last month.

Goncalves said he isn鈥檛 mandating the vaccine because he doesn鈥檛 need every employee to get a vaccination to reach a level that will lower chances of outbreaks at worksites.

Source: Wall Street Journal

Guidance from the Equal Employment Opportunity Commission is emboldening them to step up the pressure. The EEOC said U.S. employers聽can require all workers聽entering a workplace聽to be vaccinated against COVID-19, though they need to provide reasonable accommodations for those who聽are unvaccinated because of a disability or religious belief.

Source: Wall Street Journal

As vaccine distribution accelerates, however, so do questions from employers about whether they can require employees to be vaccinated.

Employment lawyers feared that the Equal Employment Opportunity Commission (EEOC) would be tone-deaf to the public health crisis. Surprisingly, the EEOC took a flexible view of mandatory vaccinations, with notable caveats.

The Americans with Disabilities Act (ADA), which the EEOC would interpret and enforce as part of the vaccine question, severely limits employers鈥� use of practices deemed 鈥渕edical examinations鈥� in the workplace.

The EEOC has concluded, however, that because a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual鈥檚 impairments or current health status and, therefore, it is not a medical examination. The ADA does not restrict employers鈥� general ability to mandate vaccinations.

Of course, there are notable caveats. First, pre-screening inquiries鈥攓uestions asked before the vaccine is administered鈥攎ay implicate the ADA, as they may reveal information about the employee鈥檚 health. As a result, if employers engage a third-party health provider to administer vaccinations on site, it is important that management stay distant from that process and instruct the third-party not to share information regarding any of the pre-screening questions. If an employee attempts to receive the vaccination and reports to her manager that she was unable to do so, leadership should not ask why.

In a related matter, employers may require proof of vaccination before allowing employees back on site, but asking follow-up questions of an employee who cannot offer such proof creates a risk that employees may reveal medical information. To that end, employers should instruct employees up front that they should not provide any information to explain their proof or lack of proof of vaccination; it should be a simple yes/no question.

Next, employers should be prepared to accommodate employees who cannot receive a vaccination because of a disability. For example, management should consider whether there are other ways to reduce or eliminate the risk, such as PPE or an isolated work environment. And, if the job can be performed remotely, then working from home almost certainly would be required as a reasonable accommodation.

Even if no accommodation is feasible, it may be prudent to provide a leave of absence, rather than jump to termination, to allow (a) time for more data regarding the risks of partially vaccinated workplaces, and (b) other employees to proceed with their vaccinations, thereby reducing the risk of a workplace spreader event.

Finally, employers should be prepared to undertake a similar accommodation analysis if an employee states that he will not receive the vaccination for religious reasons. While the law only protects a sincerely held religious belief, judicial precedent has dramatically limited employers鈥欌�攁nd courts鈥欌�攁bilities to second-guess an alleged conviction.

Thus, as a practical matter, the accommodation analysis should be the same for an individual with a disability and an individual claiming a religious prohibition.

If an employee refuses to receive a vaccination and does not indicate that the refusal is the result of a disability or religious conviction, then employers are free to prohibit returning the employee to on-site work and may consider termination. In exploring this option, a consistent practice will be essential.

For example, if management permits a top performer a leave of absence, and promptly discharges another employee, it opens the door for a variety of wrongful termination claims, such as discrimination or retaliation. When considering whether to mandate vaccinations, it is important to consider whether the organization will be willing and able to follow through with a consistent response to employees who refuse the vaccination without excuse.

Ultimately, the EEOC鈥檚 blessing of mandatory vaccination policies is a great development, but traps remain. If you adopt this policy, be sure that you are prepared to provide accommodations and treat those who refuse to vaccinate without a valid excuse consistently.

James and Schmitt are shareholders in the labor-and-employment group at Nilan Johnson Lewis. Association members are entitled to no-cost, 60-minute consultations with them. Call the firm at (612) 305-7500.

The new guidelines, which in general mirror existing U.S. Centers for Disease Control and Prevention guidance, call for face coverings, social distancing and contact-tracing. They also call for employers to implement COVID-19 prevention programs, separate and send home sick workers, improve safety communication with workers, install barriers, provide personal protective equipment, and routinely clean and disinfect.

The guidelines also suggest employers consider protections and 鈥渞easonable accommodations鈥� for workers at a higher risk of severe illness from COVID-19, naming older adults and workers with underlying health conditions as among those who may need modifications.

OSHA is also calling on employers to cover employee vaccinations for COVID-19 and to not distinguish between workers who are vaccinated and those who are not.

Source: Business Insurance

According to a summer Gallup poll, 35 percent of Americans would not get a free, FDA-approved vaccine if it were available today.

This places companies in a predicament. How can they protect their employees if more than one-third are unwilling to take the vaccine?

The default rule in the American workplace鈥攅xcluding employers in Montana and Puerto Rico鈥攊s to observe at-will employment, which generally means employees can be terminated for any reason if it鈥檚 not illegal or prohibited by employment contracts or collective bargaining agreements, says attorney Alissa Kranza.

鈥淓mployers need to stay informed of the particular laws in their state and look at their particular employee contract, agreement or handbook to determine what specific situations will allow for termination,鈥� she says. 鈥淯ltimately, those contracts will dictate whether or not termination is allowed for refusing a vaccine.鈥�

Since the virus travels across state lines, there鈥檚 also been talk of Congress mandating a vaccine under the commerce clause, but Kranza believes this is unrealistic. She says employee rights would be at risk and it could trigger an avalanche of lawsuits.

Unfortunately, there isn鈥檛 a uniform practice for what HR can do. Every industry is different. So are their employees and jobs. She suggests that HR evaluate the makeup of its workforce and review current policies or processes for handling exemption requests. For those needing a religious exemption, it鈥檚 not the religion itself that matters, she explains, but the sincerity of the employee鈥檚 belief in those practices, even if they鈥檙e not widespread.

Employees may also refuse a vaccination under OSHA or ADA laws if it threatens to do more harm than good. Some may take biologics or drugs that weaken the immune system, for example, which increases their risk of catching the virus, becoming seriously ill or even dying.

In such scenarios, Kranza says, protected workers will require accommodations, such as working remotely, or being reassigned to other jobs where they can use a plexiglass screen, social distance, wash their hands or wear a mask.

Meanwhile, HR is better off making vaccines optional versus mandating them, which tends to sour or terminate employee relationships, she says, adding that HR can launch a pro-vaccine campaign. However, if someone has a bad reaction to the vaccine, that could result in a worker鈥檚 compensation claim.

鈥淭here are a lot of (people) who want to push this as though things are clear and employers can force everyone (to get vaccinated) and there won鈥檛 be any backlash,鈥� Kranza said. 鈥淲e鈥檙e a big country and will get different reactions.鈥�

Source: HR Executive

It is likely though that the vaccine is years away from commercial availability.

The drug, developed from a genetically modified prior strain of the virus, was effective in pigs when they were challenged 28 days after inoculation, the report said.

鈥淭his new experimental ASF vaccine shows promise, and offers complete protection against the current strain currently producing outbreaks throughout Eastern Europe and Asia,鈥� said Douglas Gladue, the principal investigator at USDA, which developed the vaccine.

The virus has been most devastating for China. Hog herds have been decimated in the roughly 18 months since the outbreak began, and the impact has ricocheted across global markets. The virus is deadly to pigs but does not harm humans.

鈥淒r. Liz Wagstrom, the chief veterinarian for the National Pork Producers Council, said the council is optimistic about the vaccine, but there are still hurdles to clear, one of which is to identify a commercial partner that could take that vaccine and adapt it, so it can be mass produced in a commercial facility. The vaccine also requires more testing before it reaches the federal approval process.

鈥淚 would not want to guess how long,鈥� she said, 鈥渂ut I would say a minimum of two years would be, I think, optimistic.鈥�

Sources: Bloomberg, Brownfield Ag