Since September 9, when President Joe Biden announced that large employers of 100 people or more would have to comply with a vaccine mandate or submit to weekly Covid testing, business owners — restaurateurs among them — have been waiting for details. That official word arrived on November 5 with the Occupational Health and Safety’s (OSHA) emergency temporary standard (ETS), a 500-page guide that spells out how to comply with the new rule.
Then, all of a sudden, there was even more waiting.
Less than 24 hours after OSHA issued the guidelines, two dozen states as well as businesses and religious institutions sued. In response, the U.S. Court of Appeals for the Fifth Circuit in Louisiana issued a stay putting the mandate on temporary suspension. For now Biden’s vaccine-or-test rule is on hold.
What does that mean for large restaurant owners? Short answer: We don’t know yet. Until the courts resolve the legal challenges, no one can say for certain what the outcome of the complaint will be. How long it will take is also hard to know.
While the rule is in limbo, large restaurant owners are off the hook and are not obligated to abide by the ETS, according to the law firm Butler Snow Law. But that doesn’t mean you can slump back in your chair just yet. Here are five things to consider and do as you prepare for an eventual outcome around these rules.
We’ll know more in the coming days. The Biden administration was given until 5pm on Monday, November 8 to respond to the request for a permanent injunction, per the New York Times. The Fifth Circuit Court ordered the petitioners to file a reply by 5pm on Tuesday, November 9. Everyone is in hurry up and wait mode.
Regardless of whether this challenge succeeds in undoing the Biden administration’s vaccination/testing mandate, it doesn’t preclude your restaurants from establishing your own vaccination and testing rules. As Adam Gersh, an attorney who focuses on labor and employment at the law firm Flaster Greenberg in New Jersey recently told Back of House, businesses are within their rights to require employees to be vaccinated. Many have done so already. Disney, for instance, rolled out its vaccine mandate in July 2021, according to Deadline, and gave its employees 60 days to comply.
For restaurants betting that the federal mandate will prevail, instituting your own mandate now is a way to stay ahead of the game and ensure compliance if it does proceed. But even if the federal mandate does get overturned, instituting a vaccination/testing mandate now ensures the health and safety of your staff and customers.
Restaurant owners can also use this time to study up on OSHA’s ETS. It lays out the guidelines for following the order, and includes instructions on how to handle exemption requisitions on medical and religious grounds — the thorniest component of imposing a mandate across a large workforce. Check out the FAQ that OSHA created to address concerns related to these topics and others.
Now is a great time to put your vaccination and Covid testing rules in writing. Using OSHA’s ETS as a guide, you can work with a labor and employment attorney to create a document that spells out exactly what staff can expect when it comes to Covid-related work requirements.
This document should lay out policies and explain how personal information will be used (for documentation) and how it will be protected. Use this time as well to train managers on how to keep your workers’ health information confidential. This is delicate information that deserves proper care whether or not the federal mandate moves forward.
So you got an extension on the hard deadline. This gives you extra time to reach out to an attorney to go over the OSHA ETS, the temporary suspension, and what it all means for your restaurant. The nature of the stay may make firm answers elusive. But legal advice can help protect your restaurant if and when the case moves forward.
The bottom line: This pause in the OSHA rules offers some breathing room. For restaurant operators, it’s a chance to use federal recommendations to set your own protocols in place and to get better positioned to comply should the ETS become a federal rule. Use the time to your advantage.