On Sept. 9, President Joe Biden announced that the U.S. Department of Labor is developing an emergency rule to require all employers with 100 or more employees to ensure their workforces are fully vaccinated or show a negative test at least once a week.
Within a matter of weeks, the Occupational Safety and Health Administration is expected to issue an emergency temporary standard, or ETS, to carry out the requirement.
The ETS is expected to affect more than 80 million workers.
Private employers also will have to give workers paid time off to get vaccinated or recover from any vaccine side effects.
Employers that do not comply with the vaccinate-or-test mandate or PTO requirements may face fines of up to $14,000 per violation.
Beyond that limited outline of the anticipated ETS, questions abound, including the following:
Does OSHA have the authority to require private employers to impose vaccination or testing requirements on their employees?
First, OSHA already imposes one vaccination requirement on employers: Employers must offer the hepatitis B virus vaccination to all workers who have occupational exposure, including health care workers, emergency responders, morticians, first-aid personnel, correctional officers, and workers in hospitals and commercial laundries that service health care or public safety institutions.
However, although employers must offer the hepatitis B virus vaccination, employees may decline to receive it without losing their jobs.
Second, the Occupational Safety and Health Act gives OSHA the authority, under certain limited conditions, to set emergency temporary standards that take effect immediately and remain in effect for up to six months, without going through the normal review and comment process of rulemaking.
OSHA must determine that those conditions exist here — i.e., that American workers are in grave danger due to exposure to COVID-19, and that an emergency standard is needed to protect them.
OSHA will likely point to well-known COVID-19 statistics to establish that a grave danger exists: the approximately 1,500 COVID-19 deaths each day in the U.S., the more than 650,000 coronavirus-linked deaths in the U.S. to date and the rising number of cases in a number of states.
OSHA will likely argue that mandatory vaccinations and testing requirements are necessary to protect workers, based on evidence that fully vaccinated people get COVID-19 less often than unvaccinated people, spread the virus for a shorter period of time when infected, and are less likely to become seriously ill or require hospitalization.
However, challenges are coming.
Several governors have already promised to try to block the ETS from taking effect in their states.
They argue that Biden does not have the power to unilaterally require millions of private-sector workers to get vaccinated or risk losing their jobs, and that the mandate constitutes an undemocratic expansion of federal authority over matters of personal health and conscience.
Is there any precedent for a COVID-19 emergency temporary standard?
Yes. This new vaccinate-or-test mandate will be the second ETS issued by OSHA concerning COVID-19.
The first ETS was issued on June 21, and applies only to health care employers.
That first COVID-19 ETS requires health care employers to help protect their workers in settings where suspected or confirmed COVID-19 patients are treated.
How will the OSHA ETS affect already existing state OSHA requirements concerning COVID-19?
Twenty-eight states and territories have OSHA-approved state plans (i.e., their own state OSHAs).
Of those, 22 cover both public and private-sector employees. The remaining six states and territories cover only state and local government employees.
When the federal OSHA issues an ETS, states and U.S. territories with their own OSHA-approved health and safety plans must either amend their standards to be identical to or at least as effective as the new standard, or show that an existing state standard covering this area is at least as effective as the new federal standard.
State plans must notify federal OSHA of the action they will take within 15 days and adopt the federal ETS within 30 days of final federal rule.
The state plan standard must remain in effect for the duration of the federal ETS.
Will the anticipated ETS affect state or local mask mandates?
No. The OSHA ETS is not expected to affect state or local mask requirements.
Has OSHA provided any details about the anticipated ETS?
So far, OSHA has not provided any details concerning the anticipated ETS.
Outlined below are some of the critical details that employers will need to understand.
Employers will want to know if there is a process to seek exemptions from the ETS, and if so, what they will need to demonstrate to secure exemptions.
Employers will also want to know whether the vaccinate-or-test requirement applies to all employees, including employees working remotely, or whether the requirements will apply only to employees who work in offices, facilities or other work sites.
Although the Biden administration has not indicated that the mandate will be limited to nonremote workers, if the ETS broadly apply to all workers, including remote workers who are not exposing themselves or others to the COVID-19 virus in the workplace, the standards will likely be more vulnerable to legal challenge.
The amount of time that employees have to become fully vaccinated will be a key compliance detail.
Employers with a highly vaccinated workforce likely will find it easier to comply with the new ETS.
The testing alternative provides a built-in accommodation for employees who decline, for any reason whatsoever, to get vaccinated.
The testing option should make it relatively straightforward for employers to respond to employee requests for accommodation from the vaccination requirement based on disability or sincerely held religious beliefs.
That is, there is little need to consider a range of accommodations, or even to closely scrutinize the accommodation requests, because employees already have the alternative option of presenting a weekly negative COVID-19 test result.
Additionally, the testing alternative may forestall some legal challenges to the mandate.
It is worth noting that the Biden administration is not giving federal employees the alternative of providing a weekly negative COVID-19 test.
However, the testing alternative will lead to myriad issues, such as:
- What if an employer does not want to provide a testing option? Can employers impose even stricter requirements, requiring employees to get vaccinated without the testing alternative?
- Will partially vaccinated employees need to provide negative test results?
- Will at-home tests be sufficient, or must employees be tested in a laboratory or at a testing site?
- Do employers need to monitor employee testing or take any other measures to ensure the tests and results are valid, such as setting up on-site testing?
- Who will pay for tests: employers or employees?
- Do employers need to pay unvaccinated, nonexempt employees for their time spent on weekly testing, and include that time in overtime pay calculations?
- If unvaccinated, asymptomatic employees test positive, how long will they need to wait before retesting and returning to work? In the meantime, will their leave be paid or unpaid?
Effect on Employers That Already Require Vaccinations
Many employers already require current employees and new employees to be vaccinated, without a testing alternative.
Those employers may be accommodating employees who refuse to be vaccinated on medical or religious grounds by providing remote work or leaves of absence.
It is unclear whether the ETS will address such situations.
In the absence of guidance in the ETS, employers will need to decide if they will continue to provide the current accommodations, or switch to the built-in accommodation of providing a weekly negative test result instead.
Effect on Employer Incentives and Surcharges
Some employers have been offering incentives to employees to get vaccinated and/or imposing disincentives to unvaccinated employees, such as health insurance premium surcharges.
It is unclear how the ETS will affect these measures. For example, will the ETS permit employers to impose surcharges on unvaccinated workers who are presenting weekly negative tests?
Data and Reporting Issues and Enforcement
Although the new ETS is expected to affect some 80 million workers, it seems clear that OSHA will not — at least in the very near term — have the resources to systematically or rigorously enforce the new requirements.
It is also unclear how, or even whether, OSHA will collect data sufficient to evaluate employers' compliance with the mandate.
Without a reporting system in place, it seems unlikely that the ETS will require employers to systematically report vaccination and testing data.
Nevertheless, employers will want to pay close attention to any record-keeping requirements, such as the form in which employers must collect vaccination and testing information.
How can employers prepare for the anticipated emergency temporary standard?
Employers should take three steps, outlined below, now.
1. Encourage employees to get vaccinated now, ahead of the new mandate.
While the ETS should address at least some of the myriad questions about how the vaccinate-or-test mandate will work, there is no doubt that questions will linger.
Employers with highly vaccinated workforces will largely avoid getting mired in the complications that will inevitably come with monitoring weekly negative test results.
Encouraging vaccinations now will help employers to avoid, or at least minimize, some of those challenges.
2. Get informed about employees' vaccination status.
The anticipated OSHA ETS necessarily will require employers to gather vaccination information from their employees.
However, employers don't have to wait to gather that information. If they have not already done so, employers should collect vaccination information now.
To evaluate the likely effects of the new OSHA ETS on their operations, employers will want to know, as soon as possible, how many employees remain unvaccinated.
3. Ensure measures are in place for keeping vaccination and testing information confidential and secure.
Whether they have already begun collecting vaccination information or are about to begin, employers should review their internal processes now to make sure that they have in place a system for reliably and confidentially collecting and storing vaccination and testing information.
This article is reprinted with permission from Law360, September 14, 2021, www.Law360.com.
 Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.
 Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.