In arguably the most far-reaching move of the COVID-19 pandemic, the Biden administration announced Thursday that federal workplace safety officials will soon issue a rule that will require all employers with 100 or more employees to either ensure their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work. Businesses will also be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects as part of the forthcoming emergency rule expected from the Occupational Safety and Health Administration (OSHA). (Editor’s Note: On a September 10 webinar, Labor Department officials stated that while employers must provide paid time off for employees to receive and/or recover from the vaccine, employers could require employees to use their existing paid time off for this purpose.) The announcement was part of the Biden administration’s “Path Out of the Pandemic,” which outlines a six-pronged, comprehensive national strategy to combat COVID-19, which also includes vaccine mandates for federal contractors (discussed here) and many additional healthcare workers, and providing further access to federal financial assistance. Here is a summary of the expected rule along with a five-step action plan you can implement immediately – and registration information for an emergency webinar to further examine these developments on Tuesday, September 14.
Vaccine Mandate for Employers with 100+ Employees
The cornerstone of the plan involves OSHA issuing a vaccine/testing rule that will apply to all private employers with more than 100 employees – which is estimated to impact 80 million workers, or two-thirds of the country’s workforce. This rule will take the form of an Emergency Temporary Standard (ETS), which allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present. Covered employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. Although it is currently unclear, this likely means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS.
Which Employers Will Be Covered?
As OSHA will be the agency responsible for issuing and enforcing the ETS, all employers covered by the OSH Act must comply with the forthcoming ETS. Many office-based employers do not even realize they fall under this statute and are not accustomed to interacting with OSHA, including financial institutions, insurance companies, law firms, and other professional and technical work environments.
When Will the ETS Likely be Issued?
While the Biden administration did not set out a timeline or deadline for OSHA to issue the ETS, it is clear that the administration is taking an aggressive approach. It is likely that OSHA will issue the ETS relatively quickly – perhaps in the next several weeks, especially if it has been in the works behind the scenes for some time now. After it is issued, OSHA will likely strive for a timeline of 75 days before it starts enforcing the ETS to remain consistent with the Biden administration’s proposed deadline for federal workers to obtain the vaccine. (Editor’s Note: On a September 10 webinar, Labor Department officials stated that the ETS will be issued in the “coming weeks,” but did not provide a specific date.)
Once issued, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. But in states where the federal government does not have jurisdiction over workplace safety (OSHA-state-plan states such as California, Tennessee, North Carolina, and Kentucky) these agencies will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days.
How Long Will the ETS Last?
The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.
The 7 Biggest Unanswered Questions
The details of what the ETS will include are scarce at this point, leaving many questions unanswered. The seven biggest unanswered questions for employers at this point:
What Should You Do? A 5-Step Action Plan for Employers
Here is a five-step action plan you can implement immediately to put yourself in the best position to comply with the expected ETS.
You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need.
The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.
You will also need to determine whether you will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy.
For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.
For a detailed discussion of this topic, please refer to An Employer’s 3-Step Guide to Responding to COVID-19 Vaccine Religious Objections.
For employers who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, you will need to review the applicable federal, state, and local employment laws to determine if you must pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday.
As a reminder, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, remain in effect.
Therefore, in addition to the requirements of the new ETS, OSHA likely will ask for your COVID-19 response plan and training records if it receives a complaint or conducts an in inspection concerning the vaccine mandate ETS. If not already in place, develop a COVID-19 policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection. This effort could save your company from paying significant fines.
You should begin preparing now for the forthcoming Emergency Temporary Standard by establishing policies for determining employees’ vaccination status and procedures for tracking weekly test results. You should also prepare for the possibility that employees may refuse to comply with the requirements of the ETS and begin planning and appropriate response – which would include terminating their employment.