[co-author: Abbegael Giunta]

“Vaccinating the Unvaccinated” is central to the Biden Administration’s “Path Out of the Pandemic.” Federal agency workers and military personnel are required to be vaccinated; health care facilities that participate in Medicare or Medicaid must require vaccination for health care workers; certain federal government contractors must ensure that covered employees are vaccinated (see our prior blog post on the Safer Federal Workforce Task Force Guidance under EO 14042); and OSHA has been directed to issue an Emergency Temporary Standard (“ETS”) that will require all employers with more than 100 employees to require vaccination or weekly COVID-19 testing for all employees. The ETS is expected to be issued soon without formal notice and comment rulemaking and will be effective for only six months.

Many large private employers and healthcare systems are already moving forward with mandatory vaccination programs ahead of the ETS and have set deadlines for employees to be fully vaccinated. Although there have been some legal challenges to private employer vaccine mandates, they have held up to judicial review, provided that the employer establishes a process for considering requests for accommodation due to a disability or sincerely-held religious belief.

The ETS is expected to be issued in the coming days or weeks. Yet, many of the important details remain unknown. Employers are left with many unanswered questions for the time-being, such as: How will the 100-employee coverage threshold be calculated? How long will employers have to comply? What proof of vaccination will be required? Who is required to pay for weekly testing of unvaccinated workers? How do employers confirm weekly negative test results for unvaccinated workers?

These and other questions will remain unanswered until the ETS is issued. In the meantime, we can look to the Safer Federal Workforce Task Force Guidance issued under EO 14042 (Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov) for insight. Although EO 14042 only applies to certain federal government contractors, the Task Force guidance may preview OSHA’s approach to some of the key issues in the ETS.

1. The ETS will likely go into effect immediately but may give employers a window of time to comply after the new standard is published. For example, under EO 14042 covered federal contractors have until December 8, 2021, to ensure that covered employees are fully vaccinated.
2. The ETS is certain to include exceptions “as required by law,” which appears to mean that an exception could be provided only if required by the ADA or Title VII, such as for a medical or religious reasons. Since the ETS will allow for a weekly testing option for unvaccinated workers, the circumstances in which an exception from testing will be required as an accommodation appear to be limited.
3. As to what type of proof of vaccination will be acceptable, the Task Force Guidance requires that covered federal contractors require that their employees “show or provide” proof of vaccination, such as a vaccine card or immunization record. If OHSA takes the same approach, employers who previously reviewed vaccine cards and made records of which employees were vaccinated should be permitted to rely upon those records, even if copies of the vaccine cards were not retained. However, an attestation of vaccination by the covered employee will not be an acceptable substitute if the Federal Task Force Guidance is any indication of the approach to be taken by OSHA.
4. Based upon the Task Force Guidance, the ETS is unlikely to include an exception from the vaccination or weekly testing requirement for employees who recently had a confirmed case of COVID-19.
5. With respect to other mitigation measures, the ETS could also require that employers follow the CDC guidelines for masking for unvaccinated workers and vaccinated workers in areas of substantial or high community transmission. The CDC thresholds for high or substantial community transmission are conservative – currently 90% of US counties are classified as “high” community spread by the CDC and another 6% are classified as “substantial.” It remains to be seen whether OSHA will go beyond the vaccine or testing requirements and issue mask requirements, as the Task Force did for covered federal contractors under EO 14042.

There will certainly be legal challenges to OSHA’s authority to issue the ETS. The legal challenges will likely focus upon whether the specific approach taken in the ETS is necessary and effective to reduce the dangers of COVID-19. Unless a federal appeals court promptly issues an injunction, the outcome of the legal challenges may not be resolved until after the six-month effective period of the ETS has elapsed.

Employers with more than 100 employees can begin to prepare for the ETS by continuing to encourage vaccination of on-site workers and by having employees “show or provide” proof of vaccination. Many employers are communicating with employees about the forthcoming ETS and urging unvaccinated employees to get vaccinated to protect themselves and their co-workers. Some employers have gone a step further and have issued a mandatory vaccination policy. Either way, employers should develop processes and guidelines for handling accommodation requests and obtaining the information necessary to determine whether an accommodation is necessary.