As you are probably aware, on Sept. 9, 2021, President Joe Biden signed executive orders requiring federal workers and contractors to get vaccinated against COVID-19. President Biden also directed the Occupational Safety and Health Administration (OSHA) to draft a new emergency rule requiring all businesses with 100 or more employees to ensure all workers are either tested for COVID-19 once a week or fully vaccinated. Fines for non-compliance have employers trying to prepare their workforce and seeking answers.
In an effort to provide clarity on what you can do now based on the knowledge we have and provide insight on what information you should be watching for in the coming weeks, we have pulled together all available information regarding the mandate in this one article for easier review. You can also download the full summary to read or hang onto for reference.
President Biden’s vaccination requirements focus on four main groups of workers and employers.
Private employers with 100 or more employees
- Must require vaccination OR
- Produce a weekly negative test result before coming to work
- Employers are expected to be required to provide PTO for vaccinations and to recover from vaccine side effects
- Failure to comply results in fines for employer
Federal Employees & Federal Contractors
- Required to be vaccinated
- No option to engage in weekly testing in lieu of vaccination
- Does not apply to non-executive branch federal employees
Teachers & Staff from federal education-related programs (i.e., Head Start) and schools operated by the Bureau of Indian Education and Department of Defense.
- Required to be vaccinated
- No option to engage in weekly testing in lieu of vaccination
Health Care workers at facilities that receive Medicaid or Medicare reimbursement
- Must require vaccination
- No option to engage in regular testing in lieu of vaccination
While it has been stated that these requirements are still eligible for religious or medical exemptions as recognized by law, there has been discussion on how these exemptions will be handled and what, if any, accommodations must be offered to these workers.
The Biden Administration plans to implement these changes using executive orders and the rulemaking authority of federal agencies. How these n.ew requirements will be imposed or enforced is yet to be known. Two federal agencies will be involved.
- US Department of Health and Human Services will be the rulemaking authority to enforce the new requirements for Group 3.
- Occupational Safety and Health Administration (OSHA) (a division of US Department of Labor) will create an emergency temporary standard (ETS) that will apply to Groups 1, 2 & 4.
Emergency temporary standards (ETS) are a federal regulation that can be implemented immediately and can stay in effect for up to six months until a permanent rule is enacted (which requires the typical notice-and-comment period).
ETS allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present.
Currently, there are no disclosed timelines on when the ETS will be released. General expectations are that we should be watching for these requirements to be released in the next few weeks with some experts not expecting the ETS to be issued until November. Once issued, experts have indicated OSHA will likely strive for a timeline of 75 days before enforcement begins.
How these new requirements will be enforced is unknown. There is an understanding that OSHA will begin to accept employee-driven complaints regarding employers not taking the proper steps to ensure their employees are vaccinated or tested. This would then prompt an OSHA investigation depending on the severity of the employee complaint. Employers found to be non-compliant could face up to $14,000 per violation.
The ETS will have immediate effect in the states where federal OSHA has jurisdiction. Twenty-one states and Puerto Rico have state plans covering private employers, meaning that federal OSHA standards do not apply there. Those states will have to adopt their own ETSs on vaccination and testing, which must be ‘at least as effective’ as the OSHA ETS but need not be identical.
State-plan jurisdictions must adopt an ETS within 30 days of publication of the OSHA ETS, to remain in effect for the duration of the OSHA ETS, unless they already have a standard that is ‘at least as effective’.
FEDERAL VS STATE OSHA PLANS
OSHA-Approved State Plans
Alaska | Arizona | California | Hawaii | Indiana | Iowa | Kentucky | Maryland | Michigan | Minnesota | New Mexico | Nevada | North Carolina | Oregon | Puerto Rico | South Carolina | Tennessee | Utah | Vermont | Virginia | Washington | Wyoming
Federal OSHA States
Alabama | Arkansas | American Samoa | Colorado | District of Columbia | Deleware | Florida | Georgia | Guam | Idaho | Kansas | Lousiana | Massachusetts | Mississippi | Missouri | Montana | Nebraska | New Hampshire | North Dakota | Northern Mariana Islands | Ohio | Oklahoma | Pennsylvania | Rhode Island | South Dakota | Texas | West Virginia | Wisconsin
Federal OSHA States
Connecticut | Illinois | Maine | New Jersey | New York | Virgin Islands
Employers across the U.S have questions [that] and while there may not be official answers yet, there is plenty of speculation which is creating quite a bit of confusion. Here are some of these topics and insights to differentiate between speculation and facts.
REMOTE WORKERS: WHAT WE KNOW
- Generally speaking, OSHA largely avoids addressing safety issues concerning employees working from home.
- On 9/10, Labor Department officials confirmed that remote workers not working in contact with others would not be covered by the emergency rule provided they do not come to the workspace.
COUNTING TO 100
- On 9/10, Labor Department officials confirmed that the 100-employee threshold will be counted on a company-wide basis, not a per-location basis.
- At this time, it is unclear whether a joint employer (i.e., PEO’s, Professional Employer Organizations) analysis will apply to the calculation of employees.
COLLECTING THE PROOF
- On 9/10, Labor Department officials confirmed that information regarding collection and verification of vaccination status will be outlined in the ETS.
- Speculation: OSHA’s record retention regulations require employers to preserve and maintain employee medical records for the duration of employment plus 30 years. Therefore, if the ETS requires employers to collect proof of vaccination, you may be required to meet these same retention requirements.
- There is no official information available at this time on what type of testing may be required to comply with the weekly testing rule.
- Speculation: While the PCR test is more accurate, it takes longer to receive the results, is more costly and the sudden influx of potentially millions of new test requests on a weekly basis could put an undue burden on the infrastructures of testing laboratories across America. Some experts anticipate that rapid home testing using approved test kits that would provide employers digital tracking of weekly results may be allowed.
WHO PAYS FOR IT?
- On 9/10, Labor Department officials confirmed that the ETS will contain information about who bears the responsibility for COVID-19 testing costs.
- President Biden’s plan proposed improved access to testing, even going so far to state retailers would offer rapid tests at cost.
- Speculation: ·Generally speaking, experts share that any testing protocols will likely need to comply with applicable wage and hour laws, which provide that time spent on employer-required tests should (almost always) be treated as compensable.
- Current rulings under the Department of Labor’s COVID-19 and Fair Labor Standards Act provides that employers are required to pay employees for time spent waiting for or receiving medical attention, including testing and vaccination, for COVID-19 whether at the employer’s direction or on their premises during regular working hours.
- Some states have laws predating COVID-19 requiring employers to pay for mandatory medical tests or to reimburse employees for any such testing.
- Employers need to plan carefully for other potential costs, including the cost of testing, time off to get tested and any additional workplace or technological support that may be needed to process the weekly testing &/or tracking.
- On 9/10, Department of Labor officials stated employers could require employees to use their existing paid time off for the purpose of receiving or recovering from the vaccine.
- On 9/10, Labor Department officials confirmed that the ETS will not change any collective bargaining agreement obligations, similar to all other OSHA standards.
- Speculation: Experts are suggesting that at a minimum, you should prepare for a corollary obligation to bargain over the effects of a decision to effectuate compliance with the new mandate (or at least the discretionary aspects with respect to vaccines vs. weekly testing) on demand.
EXEMPTIONS & ACCOMODATIONS
- Speculation: Experts agree that OSHA’s rule will likely affirm that employers must accommodate employees refusing to be vaccinated on a medical exemption or sincerely held religious belief.
- Employers will need to wait for guidance on collection of medical exemption verification that will allow the employee to prove exemption while maintaining the confidentiality of medical information that may be obtained during exemption verification.
- Employers may need to undergo additional training to clearly understand the depth and breadth of religious exemptions. Religious-based exemptions are protected even if they are not supported by a formal religious group and should normally not be questioned unless there is a rare circumstance where an employer has a specific reason to doubt the employee’s objection.
- Political and philosophical objections are not protected and do not constitute a religious objection.
- Currently, there is no official guidance available regarding natural immunity as a qualifying condition to meet vaccine mandate requirements, nor is there guidance on how long that condition would remain qualifying.
- Speculation: Current speculation indicates that proof of natural immunity will not fulfill vaccine mandate.
- Speculation: Natural immunity has been a hot topic even as some employers implemented vaccine mandates predating President Biden’s executive order. There are several legal challenges currently queued to be heard on this very topic in courtrooms across the country that may impact the publicly accessible information on statistics related to natural immunity, as well as the incorporation of natural immunity into any future guidance offered.
- Many legal challenges have already been filed and more are anticipated.
- ETS allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present.
- Speculation: The new vaccination rule would likely be in effect while any legal challenges play out.
Even though detailed requirements are not yet available and legal challenges exist that could significantly slow or even block the issuance of the ETS, employers can take on some important considerations and discussions to prepare for the potential impact of such a ruling.
Determine if the ETS will likely apply to your workplace. Do you have more than 100 employees company-wide?
What requirements will apply to your remote workers? Will you provide in-office employees a remote-work option?
Determine how you will coordinate with on and off-site contractors about compliance.
Do you have a system that enables you to track information regarding vaccinated and unvaccinated employees?
How would you prefer employees report test results?* (*Ultimately, there may be requirements to be met here)
Determine if you will sponsor on-site vaccination clinics. Determine if you will sponsor on-site testing.
Will you supply test kits for employees or will they be required to purchase their own?
Do you have a system in place that can track PTO for vaccination and recovery?
How will you communicate your plans to your employees, such as requirements, options and tracking?
Have a discussion on what your company stance will be on employees choosing not to vaccinate.
Discuss how this may impact your overall company culture. How will you prevent ostracizing or discrimination of vaxxed and unvaxxed workers?
While as employers, you can ask questions and have discussions like the above to prepare, much of this will be a game of ‘wait and see’.
How the inevitable legal challenges and employee resistance efforts play out and impact employers across American is yet to be realized.
What we can be certain of is that COVID-19 is once again creating a shifting landscape for employers to unexpectantly need to navigate.
To that end, our advisors are staying educated and informed on these developing circumstances and will communicate additional details on employer impact as additional guidance is released.