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Western New York employers reviewing federal rule mandating vaccination policy

November 8, 2021

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BUFFALO, N.Y. (WIVB) — Large employers across Western New York will spend the weekend reading almost 500 pages of a new federal rule requiring them to implement a vaccine policy for workers. With limited exceptions, the Department of Labor’s Occupational Safety and Health Administration will force workplaces with 100 or more employees to mandate vaccinations, although they have the option to offer a weekly test-out.

While the vaccination requirement doesn’t kick in until January 4, labor attorneys say employers are required to develop and roll out their policy by December 5.

Susan Schubbe, the Director of Human Resources and Organizational Development for AAA of Western and Central New York, says they are trying to gather information at this point.

“We’re partnering together with our legal team, our business team, and we’re trying to understand what the requirements are and implement a plan that will be compliant and meet the needs of our associates as well,” Schubbe said.

Right now, AAA of Western and Central New York requires mask wearing for its workers, but not vaccinations.

Supermarkets Wegmans and Tops are also reading through the new rules.

“We are reviewing the regulations and continue to encourage all employees to get vaccinated to help keep themselves and our communities healthy,” a Wegmans spokesperson said in a statement.

“We will continue to monitor the guidance of the Department of Labor and OSHA and will comply accordingly,” a Tops spokesperson said in an email.

The emergency temporary standard also requires large employers to ask workers their vaccination status, gather proof, and maintain those records.

Meanwhile, labor attorneys are questioning what enforcement of the new regulation will look like.

“As we get closer, we may get more guidance on how companies are expected to deal with compliance and how they’re supposed to report compliance,” said Stephanie Rapp-Tully, a partner with Tully Rinckey PLLC.

“Right now, the only mechanism I see are employee complaints and spot checks,” she added.

“It certainly may pose and enforcement challenge,” said Anna McCarthy, an attorney with Harter Secrest and Emery LLP. “I think that one of the methods that OSHA may be relying on is the threat of fines frankly, lingering over employers.”

A Department of Labor spokesperson said OSHA implements a “multi-faceted approach” to ensure employers comply with safety and health regulations.

“The vast majority of employers comply with safety and health standards without ever being inspected by OSHA,” the spokesperson said. “Every day there are examples of employers following OSHA standards, whether it’s hard hats on a construction site, orange cones by road work, or exit signs in a building.

“But for businesses that are not in compliance, OSHA utilizes inspections combined with compliance assistance to help employers identify workplace hazards and create plans to keep workers safe on the job.”

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