On October 12, 2021, the Occupational Safety and Health Administration (OSHA) delivered a draft of the emergency temporary standard (ETS) requiring COVID-19 vaccination or weekly testing of workers for private employers with 100 or more employees to the White House for final review and approval. The ETS is being issued in response to President Biden’s six-pronged Action Plan, announced on September 9, 2021, aimed at addressing the nation’s most recent surge of coronavirus cases. As part of his Action Plan, Biden specifically requested that OSHA develop an ETS, followed eventually by a formal departmental rule, mandating that all employers with 100 or more employees “ensure their workforces are fully vaccinated or show a negative test at least once a week.” The content of the draft ETS has not yet been made public. But it is expected to mirror the safety protocols for federal contractors set forth in Executive Order 14042 and to provide guidance similar to the EEOC’s guidance on employer obligations to provide reasonable medical and religious accommodations. While the Biden Administration has not set a deadline for the final ETS, it is expected to be approved and released soon. As such, covered employers should start taking steps now to prepare for, and ensure compliance with, the impending mandatory vaccine and testing rules.

Proactive steps covered employers can take in anticipation of the ETS:

• Survey current employees to determine what percentage of your workforce is already vaccinated. This statistic can help inform your decision on whether to implement a mandatory vaccine policy for all or to allow employees the option of weekly testing.
• Look into the cost and availability of weekly testing to determine if permitting employees to get tested weekly rather than mandating vaccination for all is feasible for your business. Existing guidance does not address whether employers will be required to pay for employees’ weekly COVID-19 testing, but covered employers should consider whether they could afford to do so if employers are ultimately required to pay for weekly testing. In addition, in states with laws requiring employers to cover all business related expenses or employer-mandated testing, you may not be able to require an employee who refuses vaccination to cover the cost of their own testing. An open question remains, however, whether an employee opting to be tested instead of vaccinated adequately qualifies as being required to do so.
• Consider whether employees will require time off to get vaccinated or tested weekly. Biden’s Action Plan signals a pending requirement that employers provide paid time off for employees to become vaccinated and recover from any vaccination-related side effects. This is already a requirement in the OSHA ETS regarding healthcare employers (discussed in our September 10, 2021 blog post). Employers may be able to require the use of PTO currently offered to its employees for these purposes, but until further guidance is issued on this topic, employers should assume that additional PTO may be necessary. Employers offering weekly testing as an alternative to vaccination should also consider whether employees will need time off work to get tested and if so, whether such employees will be paid for the time it takes to test, which would likely be considered compensable working time.
• Consider how your policy will apply to remote workers. Depending on whether the ETS requires remote workers to be vaccinated or otherwise treated the same as non-remote workers, employers with a remote workforce should consider how their mandatory vaccination and/or weekly testing policy will apply to remote employees and whether a permanent teleworking arrangement, for example, is a feasible alternative to vaccination and/or weekly testing for certain employees. However, if the final ETS aligns with Executive Order 14042 as anticipated (discussed in our October 6, 2021 blog post), employees working remotely, even if they are never physically present in the workplace or never come into contact with other employees during the performance of their job duties, may still be required to get vaccinated like everyone else absent an approved accommodation.
• Draft a written policy based on your intended method to comply with the ETS.Once you have taken the above steps and determined the best method for your business to comply with the forthcoming ETS, you should start drafting a written policy containing the specific requirements that your employees will have to follow and the consequences for non-compliance. Specific considerations for written policies include, but are not limited to: acceptable documentation for proof of vaccination and/or weekly testing, deadlines for submitting the required documentation and a procedure for requesting religious and disability accommodations.

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