Locke Lord QuickStudy: Biden Issues Mandate to Employers to Require Vaccines, ‎COVID-19 Testing‎

In an effort to curb the continuing surge of COVID-19, on Thursday, September 9, 2021, President Biden rolled out a six-pronged plan that, among other things, is intended to increase vaccination and testing, keep schools and businesses open safely, and improve the availability and quality of medical care for those with COVID-19.

As part of this plan, President Biden announced that the Department of Labor Occupational Safety and Health Administration (OSHA) will issue rulemaking in the form of an Emergency Temporary Standard (ETS) to require all employers with 100 or more employees to adopt a vaccination policy that ensures that their workforces are either fully vaccinated or test negative for COVID-19 at least once a week. Many cities and states have their own COVID-related vaccination, testing or masking requirements, which may remain in place or could change in light of the new ETS.

An ETS is an immediately-enforceable regulation OSHA is authorized to enact if there is “grave danger” to worker safety, bypassing usual rulemaking procedures and comment periods. Although there is no deadline by which OSHA must issue the ETS, the Department of Labor has indicated it will act as expeditiously as possible and anticipates issuing the ETS in the “coming weeks.”  Many believe that OSHA will issue the ETS by the end of October. 

With few specifics provided by the Biden administration or the Department of Labor, employers are left to speculate as to what the rule may look like and what effect it will have on employers and employees alike. Here is what the Department of Labor has stated will be included in the forthcoming mandate, although all of this is subject to change in the final published ETS:

• The ETS will apply only to employers with 100 or more employees, as calculated at the company level, not by worksite;
• The ETS will not mandate vaccinations or testing of employees who work only remotely;
• All vaccine and testing requirements will still be subject to reasonable accommodation standards for employees with disabilities or sincerely held religious beliefs;
• Employers are required to provide employees with paid time off to get vaccinated; however, employers can require employees to pull from their existing PTO banks.
• The ETS will not dictate employer disciplinary policies or procedures, and will not require that employers terminate employees who fail to comply with testing and vaccine requirements. For employers who terminate employees for refusing to comply with an employer’s testing and vaccine policies, state law—and not OSHA—will determine the employee’s entitlement to unemployment benefits.
• Employers who fail to comply with the ETS may face fines of up to approximately $13,600, per violation.
• Additional obligations will be imposed on healthcare and federal employees, who will be required to be vaccinated without a weekly testing option (except, possibly, in the case of religious/disability exemptions).

Until OSHA issues the vaccine ETS, several issues remain open, including:

• By when will compliance be required?
• Who will pay for or administer the testing? 
• Are employers required to pay for the time the employee takes to obtain the test?
• What type of verification and record keeping is necessary for testing or vaccination—copies of results/cards; visual inspection of cards/results; mere attestation?
• Is the testing option an alternative to the vaccine for anyone or only those with religious/medical exemptions?
• Will employers have the leeway to exclude testing as an option, except for religious/medical exemptions?
• Is OSHA going to use a common control standard to aggregate employees from multiple entities to reach the 100 employee threshold?
• What is the definition of remote work under the ETS?  Will the exclusion be limited to those employees whose duties require no attendance in the office under any circumstances?

Once OSHA issues the ETS, there is no doubt that it will face legal challenges from states, employers, employee and employer advocacy groups, and more. To that end, we will all need to wait and see if OSHA will answer these key questions and whether the ETS will be enforceable in the face of these inevitable challenges.