The Occupational Safety and Health Administration announced that it was suspending its implementation and enforcement of a COVID-19 vaccine or testing mandate for employers with more than 100 employees “pending further developments in the litigation.” The decision follows the U.S. Court of Appeals for the Fifth Circuit’s ruling to grant a stay of the OSHA rule pending review.
“There’s nothing to comply with at this point,” said Drake Director of Environmental Health and Safety Chris Nickell. “We do not have a vaccination mandate on this campus at this point.”
If the mandate, which is called an Emergency Temporary Standard, survives court challenges, it would lay out two possible paths for employers like Drake to follow. Drake would have to require all employees to be vaccinated for COVID-19 or require unvaccinated employees to get tested weekly for the virus and wear a mask.
Drake Director of Human Resources Maureen De Armond said that Drake chose the second option.
“We would have to get the test results on a weekly basis to assure that they are COVID-free when they come on to our property,” De Armond said. “So that employee would need to figure out what testing site works best for them and do that on their own time. That’s not on the clock.”
Due to an Iowa state law, if Drake were to require students to get vaccinated, it would risk losing Iowa Tuition Grant aid, according to Drake Provost Sue Mattison.
“Well, for us, that was an easy decision, because on top of federal law, we have the Iowa law, which is saying, ‘You can’t do the mandate, otherwise we’ll take away your Iowa dollars.’ And we would never want to disadvantage students,” De Armond said. “And we also wouldn’t want to potentially lose employees who said, ‘Well, I’m not doing anything. You can’t make me.’”
The ETS would also require Drake to give all its employees up to four hours of paid leave to receive the vaccine, as well as “reasonable time and paid sick leave” to recover from any side effects they experience from their primary vaccination series. De Armond said that when Drake had its on-site vaccination clinics, staff members could get vaccinated on the clock without using sick leave.
De Armond said that full-time faculty don’t report paid sick leave time like staff members. They’re salaried and have less structured schedules, and they would use a short-term disability policy instead.
“So, I imagine most faculty would not schedule the vaccine during class,” De Armond said. “They would teach class, and schedule the vaccine. But it could be during office hours. And so, then it protects them so it doesn’t look like they’re missing work to go do something without permission. So we still have to work out the details of how we would do that for faculty. But again, we’re talking about a very small percentage of people who are not vaccinated today but will get vaccinated during the timeframe that the ETS is in effect.”
Student employees don’t have paid leave, so workers seeking leave to get vaccinated or recover from side effects would likely be working directly with Human Resources, De Armond said.
“So that would be creating something that does not currently exist,” De Armond said. “And then of course we would have to educate the student workers as well so that they are aware of their rights and their opportunity to do this.”
Drake will “in some ways, be reactionary to what happens in the legal challenge,” and it won’t adopt the new policies until a final ETS comes out, De Armond said. She said that the university can bypass its policy of holding a comment period for new policies when it needs to comply with the law, but they prefer to ask for feedback when possible.
“I suppose it’s theoretically possible the court could find OSHA doesn’t have the authority to even pursue these ETSs,” De Armond said. “I don’t think that’s likely, but what we don’t want to do is do rework over and over again, only to have the ETS drastically revised and then we have to go back and do another round.”
Drake reported in its Dec. 3 COVID-19 update that 85 percent of all employees are vaccinated.
“We are encouraging anybody that is fully vaccinated, please submit that to the university,” Nickell said. “That helps us manage campus better even if it’s not a requirement.”