A federal appeals court panel has lifted the stay on the Biden administration’s COVID vaccine-or-test mandate for large employers, setting up a likely Supreme Court decision and perpetuating uncertainty for self storage’s biggest operators.
The US Appeals Court for the Sixth Circuit ruled Friday that the Biden administration could enforce its policy to compel employers with more than 100 employees to mandate vaccines or comply with weekly testing, pending a complete review of the merits of the policy. The Occupational Safety and Health Administration published those rules in November. Days later the Fifth Circuit Court of Appeals ordered OSHA to stop implementation, and the Biden administration was forced to halt the mandate.
With the federal appeals court lifting the stay on the vaccine-or-test mandate, the issue is likely to be decided by the Supreme Court. A group of GOP state attorneys general and a coalition of business groups promptly requested that the Supreme Court reinstate the stay. It is unclear how the court will rule. In early December, the Supreme Court refused to block New York’s requirement that healthcare workers be vaccinated. Meanwhile, the omicron variant of the COVID-19 virus is advancing at a rapid pace, disrupting mass gatherings and sporting events in ways not seen in months.
OSHA’s policy originally had a January 4 deadline for employees to become vaccinated or submit to weekly testing Following the Sixth Circuit’s decision, OSHA announced that it will extend that deadline until February 9, 2022, for employers that are taking reasonable, good faith steps to comply. For those employers, OSHA will begin enforcing other portions of the policy, such as the requirement to have unvaccinated employees wear masks, on January 10, 2022. Employers that are not taking reasonable, good faith steps to comply may be subject to citations and penalties immediately.
Large employers have been watching the back and forth about their role since President Biden announced the mandates in September as the delta variant overwhelmed hospitals in parts of the country. Major employers followed suit, with airlines United, American, Alaska and JetBlue requiring employees to be vaccinated. Amtrak, Citigroup and Google are just some of the major employers that had already mandated the vaccine.
While some large self storage operators said they do not prefer a mandate, at least with the published OSHA rules they now have details from which to work.
“We are still trying to solidify our plan and now have a hard deadline to do so,” said Marc Smith, president of Personal Mini Storage in Orlando, Florida. “While about 70% of our team is vaccinated, we still have a formidable challenge to get to 100%.”
In early August, Columbia, Missouri-based StorageMart Self Storage stepped forward to challenge the industry to encourage the industry’s workforce to be vaccinated. CEO Cris Burnam said StorageMart would pay a $100 cash bonus to all US employees who were fully vaccinated by October 31, and he rallied other operators to do the same.
By early October, StorageMart’s incentive had boosted vaccination rates among employees by 10%. Overall, 72% of StorageMart’s corporate office team were vaccinated, and 45% of field staff were vaccinated.
Company spokespersons Sarah Little with StorageMart and McKall Morris with Extra Space Storage said leadership and HR departments were reviewing the new rules.
Now, large employers must move beyond incentives and require testing of those who choose not to receive a vaccine. The new rules require large employers to provide paid time for employees to receive the vaccine. OSHA’s regulations do not require employers to pay for any costs associated with testing, though employer payment may be required by other laws, regulations or collective bargaining agreements.
Joe Doherty, senior vice president and chief legal and legislative officer for the Self Storage Association, said larger employers have much to consider with the new rules.“This is going to be a compliance nightmare for some employers,” Doherty said. “This mandate is problematic and is going to get hung up in litigation. We may never see it go into effect.”
Doherty said state-level requirements complicate the federal regulations. In California, for example, employers must compensate employees for all time spent working and for any work-related expenses that are incurred. Doherty said larger employers may choose to simply compensate employees for testing in all states.
Some 22 states have their own state-level OSHA offices that control workplace safety, adding inconsistency to compliance. Other states have banned vaccine mandates.
Claiming religious exemption to the vaccine matters less with the new regulations, Doherty said, because unvaccinated employees will still have to be tested.