Pillsbury Winthrop Shaw Pittman LLP

Under a forthcoming OSHA emergency temporary standard, private-sector employers with more than 100 employees will be required to mandate COVID-19 vaccination or weekly testing. Eliminating a testing alternative, federal employees and contractors will be required to be vaccinated, with limited exceptions.

TAKEAWAYS

  • Covered employers could face penalties up to $14,000 for non-compliance with the OSHA rule.
  • Federal contractors will have to mandate vaccination for employees supporting federal contracts, with limited exceptions.
  • Further rulemaking should address many open questions about how employers should implement the new requirements.

On September 9, 2021, President Biden announced a national multipronged COVID-19 action plan. Two elements of the plan will directly affect how a huge number of private-sector employers must implement safety protocols intended to protect their employees against COVID-19.

First, President Biden directed the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) that will require employers with more than 100 employees to mandate COVID-19 vaccinations or impose weekly testing. The rule would also require these employers to provide paid time off for vaccination and for recovering from associated side effects. Penalties for non-compliance may be $14,000 per violation, the maximum penalty amounts for “serious” OSHA violations. Under Section 17(k) of the OSH Act, “serious” violations entail:

a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

OSHA indicated it would publish the ETS in the coming weeks. Currently, OSHA has issued only advisory guidance to employers on protecting against COVID-19 infection, except for the COVID-19 ETS for health care workers. The advisory guidance “emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19,” but it does not mandate any vaccination policies by non-health care employers. The ETS will, by contrast, be a federal legal mandate, which would preempt any conflicting state or local laws. Legal challenges from multiple angles are already being planned.

The White House COVID-19 action plan outlines the general contours of the new OSHA rulemaking, but important details are yet to come. It is unclear whether all employees of large employers will have to be vaccinated or undergo weekly testing or whether the ETS will require employers to impose such requirements only on employees engaging in in-person work. The announcement also did not set an implementation date for the new standard.

Second, President Biden’s action plan includes executive orders requiring vaccination for employees of the executive branch and contractors who do business with the federal government. Tightening a prior order, federal workers will no longer have the option to undergo testing in lieu of vaccination. They will have 75 days to become fully vaccinated against COVID-19, and those who do not will be referred to their respective human resources departments for potential termination. The executive order applicable to federal employees requires each agency to “implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” This suggests that exemptions for mandatory vaccination will only be available to employees with disabilities or certain religious objections that preclude compliance with the vaccine mandate. The Safer Federal Workforce Task Force is charged with issuing guidance by September 16, 2021.

President Biden’s announcement stated that the standard for federal employees should “be extended to employees of contractors that do business with the federal government,” and he signed a second executive order applicable to federal contractors and subcontractors with new contracts and contract-like instruments, contract options, and extensions or renewals of existing contracts that are effective on or after October 15, 2021. Those contracts must include a clause that

shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force [with respect to] to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument….

The executive order calls for the Task Force Guidance to provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions, by September 24, 2021.

While many employers already contemplating vaccinate mandates may appreciate this federal action forcing the issue, these measures leave unanswered several practical implementation questions important to employers. These considerations include:

  • employee privacy expectations,
  • personnel information management,
  • pay and expensing practices,
  • testing logistics,
  • whether the requirements will apply to workers who do not work in-person,
  • relationships with organized labor, and
  • labor shortage issues, among others.

The forthcoming rulemakings and Task Force guidance are expected to address at least some of these questions. In the interim, large employers and federal contractors that have not yet implemented vaccination mandates should proactively consider how best to do so within their organizations, in anticipation of the impending requirements.

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