Last month, President Biden announced his White House plan that will impose sweeping new vaccine requirements that will mandate vaccinations, potentially impacting millions of employees. The plan includes two major requirements that impact private sector employers:
(1) a rule that will require all business with 100 or more employees to require that employees be either fully vaccinated or tested for COVID-19 at least once a week; and
(2) mandate vaccinations for all federal contractors (with no testing alternative, although religious and medical exemptions will be permitted).
The large employer mandate is raising many legal and practical challenges for employers.
What is the White House Plan to Mandate Vaccinations?
Biden’s “Path out of the Pandemic” calls on the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) to draft a rule requiring workers at companies with 100 or more employees to get vaccinated or submit to weekly COVID-19 testing. Because testing is an option, this rule is commonly referred to as a “soft mandate.” A rule that does not provide a testing option (like the rule that applies to federal employees and federal contractors) is commonly referred to as a “hard mandate.”
OSHA is expected to issue the rule as an Emergency Temporary Standard (ETS), which is unusual for OSHA. At this point, however, there are many more questions than answers about the ETS.
Here’s what we know and don’t know at this point:
Will the ETS be enforceable?
While the President himself cannot force vaccinations, OSHA has the authority to issue guidelines (in this case in the form of an ETS) that employers must follow to mandate vaccinations.
On the other hand, many state governors have stated that they will challenge the legality of the ETS. It is anticipated that these challenges will allege that Biden’s OSHA directive violates the separation of powers between the branches of government and that the rule interferes with a state’s right to set health care policy.
It is worth noting that the courts invalidated OSHA’s ETS on asbestos in 1983. See Asbestos Info. Ass’n/N. Am. v. OSHA, 727 F.2d 415, 425-26 (5th Cir. 1984). Employers should closely monitor any legal challenges.
When will the ETS be issued?
OSHA issued its first COVID-related ETS this summer (it took nearly 6 months). However, it is anticipated that OSHA will issue this ETS much sooner – possibly by the end of October.
When will the ETS be effective?
Commentators have opined that the public will have a limited period of time (30 days) to comment on the ETS followed by implementation. The ETS will take effect as soon as it is published in the Federal Register.
How long will the ETS be in effect?
The ETS can remain effective for up to 6 months. Once the ETS expires, the requirements must go through a formal rulemaking process. At the end of that process, the requirements can become a permanent rule.
How will the 100 employees be counted?
The DOL has indicated that the 100-employee requirement will be based on the total number of employees in a given company and not based on the number of employees at an assigned work location.
Will the rule apply to remote workers?
The DOL has indicated that the rule will not apply to workers who perform work exclusively remotely.
Will employees be paid for time to vaccinate?
To date, Biden has stated that employees will receive paid time off for two reasons:
(1) the time it takes for workers to get vaccinated; or
(2) for missed work due to recovering from post-vaccination reactions.
Who pays for the vaccinations?
At this time, it is unknown. Information regarding who pays for COVID-19 testing costs will be contained in the ETS.
Note: Under the federal Fair Labor Standards Act, employers are required to pay employees for time spent for COVID-19 testing, provided the testing is at the employer’s direction or on an employer’s premises during working hours.
Will there be enough tests available?
The White House plan calls for allocating $2 billion toward the production of 280 million rapid and at-home COVID tests using the Defense Production Act. The plan expands the federal government’s free COVID testing program to 10,000 pharmacies nationwide and provides community health centers and foodbanks with 25 million free rapid tests to distribute. Private businesses will also distribute discounted tests; Walmart, Amazon, and Kroger will start selling at-home COVID tests at cost resulting in a 35% discount.
What type of COVID-19 testing will be required?
At this time, it is unknown. Given the plans use of the Defense Production Act, it appears home testing may be allowed.
Will employers be required to collect proof of vaccination?
At this time, it is unknown. Information regarding whether employers must collect proof of vaccination will be contained in the ETS. Generally, employers should avoid relying on an honor system and make sure the method is consistent with applicable state law.
The guidance issued for federal contractors lays out the following options:
• Record of immunization from a healthcare provider or pharmacy;
• COVID-19 Vaccination Record Card;
• Medical records documenting the vaccination;
• Immunization records from a public health or state immunization information system; or
• Other official documentation detailing the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site that administered the vaccine.
It is important to remember that employers must treat vaccination records as confidential medical records.
What Should Large Employers do now?
With so much uncertainty, many employers are scrambling to figure out what to do in preparation of a possible ETS that will impact their operations.
Below are 10 suggested actions employers can take now:
1. Determine which employees are vaccinated.
2. Decide whether your organization will mandate the vaccine or allow for weekly testing.
3. Consider whether COVID vaccination will be on-site or through third parties.
4. Consider whether COVID testing will be on-site or through third parties.
5. Consider whether COVID testing will be weekly or more frequently.
6. Consider who (i.e. human resources) will collect COVID vaccination information.
7. Consider who will collect COVID testing information.
8. Consider how to maintain the confidentiality of medical information, including vaccine status.
9. Determine how the company will evaluate and handle medical and religious based accommodation requests.
10. Consider whether employees will need time off from work to get vaccinated and other possible scheduling challenges.
What Should Small Employers Consider?
According to the U.S. Small Business Administration, businesses with fewer than 100 employees have the largest share of small business employment. This means that the majority of American workers will not be subject to the ETS requiring vaccines. Regardless of the ETS, a growing number of employers of all sizes are either implementing policies to mandate vaccinations or are considering doing so.
There are many factors small employers should consider in determining whether to implement a policy to mandate vaccinations. In addition to the considerations listed above, employers should evaluate the risk of COVID-19 infection or spread in their workplaces, consider the health cost savings and benefits that may be realized if mandatory testing is imposed, and access the risk of losing talented employees who refuse to be vaccinated
If you have questions about the ETS, please let me know.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.