OSHA VACCINATION-OR-TESTING MANDATE BACK IN FORCE

The federal Occupational Health and Safety Administration’s (OSHA’s) vaccination-or-testing mandate (the OSHA mandate) was scheduled to take effect on January 4, 2022, but it was blocked by a federal court. But then, on Friday, December 17, 2021, a federal appeals court lifted the block.  The OSHA mandate is now (at least for the time being) back on track. For a discussion of the OSHA mandate, see here. To learn what this latest development means for North Carolina public employers, read on.

OCCUPATIONAL HEALTH AND SAFETY IN NORTH CAROLINA

Federal OSHA does not enforce its regulations in North Carolina. Instead, the State of North Carolina has entered a “State Plan Agreement” with federal OSHA. Under the State Plan Agreement, the North Carolina Department of Labor Division of Occupational Safety and Health (NC OSH) adopts regulations (which must be at least as stringent as those issued by federal OSHA) and enforces them. North Carolina’s State Plan Agreement also provides that its occupational safety and health regulations will apply to North Carolina state and local government employers (federal OSHA applies only to private sector employers). So NC OSH will have to put into place a vaccination-or-testing mandate to match the federal one and it will apply to local government employers.

WHAT HAPPENS NEXT WITH THE FEDERAL OSHA MANDATE?

The federal OSHA mandate requires employees to receive their final vaccination doses by January 4 or be subject to testing at least once a week. Now that the appeals court has lifted the block on the mandate, federal OSHA now says that it will not issue citations for noncompliance with any requirements of the mandate before January 10 and will not issue citations for noncompliance with the mandate’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance. The business groups and affiliated organizations opposing the OSHA mandate immediately filed an appeal with the U.S. Supreme Court. The Supreme Court could block enforcement of the OSHA mandate while the appeal proceeds or it could allow OSHA to enforce the mandate until the Court decides once and for all whether OSHA has the authority to issue the mandate. It is impossible to tell what the Court will do.

But in any case, federal OSHA’s compliance dates do not apply to North Carolina employers.

Because in North Carolina OSHA regulations are not directly enforced by the federal government, the February 9 vaccination-or-testing deadline likely will not apply here.  Under the State Plan Agreement, NC OSH must issue its regulations approximately 30 days after federal OSHA regulations are published. The nationwide order blocking enforcement of the federal OSHA mandate was issued before NC OSH had a chance to issue its own regulations.  They are still in the works.

NC OSH has posted the following notice on its website:  NCDOL will review this new rule and determine the appropriate actions to take in North Carolina. The NCDOL website will be updated when any decisions are made.

WILL THE VACCINATION OR TESTING MANDATE APPLY TO EMPLOYEES OF THE OFFICE OF THE SHERIFF OR THE REGISTER OF DEEDS?

The NC OSH rules, when they become effective, will apply to local government employers generally, but will they apply to employees of the sheriff or the register of deeds?

Under North Carolina law, employees of the sheriff and of the register of deeds are not county employees for state law purposes. No matter how closely they must hew to the federal OSHA mandate, the NC OSH regulations will still be state regulations. As a result, for purposes of complying with NC OSH regulations, the office of the sheriff and the office of the register of deeds should each be considered a separate employer from the county.  That will make a big difference if the new NC OSH regulations apply only to employers of 100 employees or more.

The federal OSHA mandate applies only to businesses with 100 or more employees. Because NC OSH is required to adopt regulation “at least as effective” as the federal rule, it is permitted to make regulations that are more restrictive. It is possible that the new NC OSH rule will be made applicable to employers with fewer than 100 employees or even to all North Carolina governmental employers. Sheriffs and registers of deeds should not assume that they will be automatically exempt from these requirements. Only time will tell.

Whether or not the new NC OSH rule applies to the sheriff or the register of deeds of a particular county, the county manager and board of county commissioners may use other means to encourage their employees to be vaccinated. Employees of both the sheriff and the register of deeds participate in the county’s health insurance plans. Giving a discount on health insurance premiums to those employees who become fully vaccinated and/or receive booster shots is one way that the county can promote vaccination among those employees over whom it does not have direct control.

WHAT IS THE STATUS OF THE OTHER TWO FEDERAL MANDATES?

The OSHA mandate is one of three federal vaccination mandates. The other two are the federal contractor mandate and the CMS mandate.

As of the date of this blog post, the federal contractor mandate is “on hold” nationwide.  In early December, a federal district court in Georgia ordered the federal government not to enforcement its mandate that employees of federal contractors must be fully vaccinated by January 4, 2022. This stay of enforcement is in effect while the validity of the federal contractor mandate is litigated. The stay could be lifted by a federal appeals court (just as happened for the OSHA mandate). For more on the substance of the federal contractor mandate and on whether it applies to local governments, see here.

The Centers for Medicare and Medicaid (CMS) rule requiring providers of certain Medicare- and Medicaid-qualified services to ensure that all employees working in those service areas are vaccinated is in effect in North Carolina (it has been blocked in several other states). Those services include home health services, hospice, infusion services, outpatient physical therapy and speech-language pathology services, as well as Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs). For more on the CMS rule, see here.