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OSHA vaccine mandate: What employers can expect

November 8, 2021

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ROCHESTER, N.Y. (WROC) — On January 4, companies with over 100 employees will have to be fully vaccinated or submit to weekly COVID testing. President Biden announced the federal mandate on Thursday.

The Occupational Safety and Health Administration says anyone who fails to comply could be faced with a penalty of up to fourteen thousand dollars.

So far, 11 states have filed lawsuit over this, claiming it’s unconstitutional.

Peter Pullano, lawyer with Tully Rinckey predicts this argument may not hold up in court because employees can still opt for weekly testing.

Additionally, health and religious exemptions will also have to be considered.

But even with these options, many clients are still asking him, how is mandate like this possible?

“The federal government is going to claim that, given the crisis, and what they’ve got to do given all of the dramatic gestures they’ve already made to assist Americans, this is an issue of national health and safety,” said Pullano.

Some may argue, it’s a matter for the states. Pullano says again, it comes down to the basis of health and safety.

“If one state opts out, a neighboring state could end up badly infected,” he said. “Ultimately I think it’s going to be the basis of the federal government’s argument. There is also a states’ rights component that courts may have to look at,” he said.

James Grasso is a partner with Phillips Lyte law firm, a company of over 100 people with offices in Rochester and across the region.

In addition to fielding questions from clients, Grasso is also behind the scenes in logistics for his own company.

“I’m involved because I do labor employment work, I consult with our managing partner about which way we want to go whether to vaccinate or allow testing,” said Grasso.

He says Phillips Lyte has already implemented a requirement for employees to either get vaccinated or test weekly, and so far it’s been successful. Just under ten employees with the firm are not vaccinated, so he is not concerned about losing staff.

“From a firm perspective, we want to keep employees safe but at the same time we don’t want to be heavy handed,” said Grasso.

News 8 reached out to some other mid-to-large size companies in the region for comment:

From Wegmans:

“Our top priority continues to be the health and safety of our employees and customers. We are reviewing the regulations and continue to encourage all employees to get vaccinated to help keep themselves and our communities healthy.”

From Paychex:

“With the OSHA guidance just being released yesterday, Paychex is in the process of finalizing its plan. We will, of course, comply with the requirements. I’m sorry that I don’t have additional details to share at this time.“

Pullano says the mandate was originally written to exclude small ‘Ma and Pa’ organizations, but OSHA is looking into possibly changing that.

Because vaccines are free, OSHA said, companies do not have to provide or pay for tests.

Legal experts tell us companies likely won’t have to pay for testing as well.

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