Bob Lian and Brian Patterson Discuss OSHA Emergency Temporary Standard with Media

Akin Gump labor and employment practice head Bob Lian and fellow partner Brian Patterson have been quoted regarding Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring vaccination against COVID-19 or at least weekly testing applies to employers with at least 100 employees but exempts remote workers.

Bloomberg, in its article “Employers Wrestle With Fighting or Accepting OSHA Vaccine Rule,” said that some employers are uncertain as to whether or not they should voice their opposition or support for the ruling, even if they’re privately worried about the rule’s effect on employee retention or clinging to optimism that it will promote a safer workplace. To that, Lian said, “To the extent that employers are pleased with the rule in that it gives them cover, I suspect that they are nevertheless going to not want to be out front about this and be vocal about any support.”

In Society for Human Resource Management’s (SHRM) article “Remote Workers Are Exempt from OSHA Requirement to Be Vaccinated or Test for COVID-19,” Patterson spoke to OSHA’s ETS exemption for those who work exclusively outdoors, saying that the rule is “extremely narrow,” cautioning that, “[e]mployers should be hesitant to claim the exemption for employees who regularly spend more than 10 total minutes indoors in a workday.”

Patterson also advised against employers’ permitting remote work opportunities for employees that do not comply the ETS, as it could “make it difficult for employers to refuse future requests, regardless of the reason, from employees in the same or similar positions to work remotely as the refusal could serve as the basis for a discrimination claim. Accordingly, employers should consider the long-term impact of the decision to allow employees to work remotely due to the ETS.”