In arguably the most aggressive COVID-19 action to date, the Biden administration announced that federal workplace safety officials must issue a rule requiring all businesses with 100 or more employees vaccinate their workforce or produce weekly negative test results before any unvaccinated employees can come to work.

As vaccine mandates continue to be a hot topic and polarizing force, many businesses – especially those struggling to hire qualified workers – are deciding to wait for the official rule to be issued before taking action to enforce the impending mandate.

This new vaccination mandate will fall under the Occupational Safety Hazards Act (OSHA) as another Coronavirus Emergency Temporary Standard (ETS) rule, which allows the agency to enact regulations to protect employees from a “grave danger” to workplace safety.

With the Delta variant surging throughout the country, and new variants of concern like Mu identified, this announcement is part of the administration’s “Path Out of the Pandemic” plan – a comprehensive six-pronged strategy that will provide additional access to federal financial assistance to combat COVID-19. The strategy also includes vaccine mandates for federal contractors and many additional healthcare workers.

The “Path Out of the Pandemic” plan is estimated to impact 80 million workers, or two-thirds of the country’s workforce. Covered employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. This means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS.

Whether a business is waiting for OSHA to issue the ETS rule or deciding to move forward on their own, it will be critical to communicate with employees that once the rule is written and officially enforced by OSHA, most businesses will need to comply.

Here are some other important things employers should know:

  • Once OSHA issues and enforces the ETS, all employers covered by OSHA must comply. This may surprise many office-based employers that might not realize they also fall under this statute due to not being accustomed to interacting with OSHA…such as financial institutions, insurance companies, law firms, and other professional and technical work environments.
  • OSHA will issue the ETS relatively quickly – perhaps in the next several weeks. After it is issued, OSHA will allow a timeline of 75 days before it starts enforcing the ETS. This will be the same deadline for federal workers to obtain the vaccine. Once issued, the ETS will have immediate effect in the states where federal OSHA has jurisdiction. In states where the federal government does not have jurisdiction over workplace safety (OSHA “State Plan” states such as California and others), these agencies will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days.
  • The ETS will remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.
  • Government employees and government contractors must comply with the ETS regardless of employee count.
  • OSHA’s record-retention regulations require that employers 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 maintain that record for the duration of the employee’s employment plus 30 years.

There are many unanswered questions:  

  • Will remote employees be covered?
  • Is the 100-employee threshold location-specific in the calculation of employees?
  • What COVID-19 tests are acceptable?
  • Who pays for testing?
  • How will employers show proof of vaccination?
Actions an employer should take immediately will depend on each businesses’ individual assessment. Here are some considerations:                                                                                                                                             
  • Adopt Procedures for Determining Employees’ Vaccination Status. Prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission (EEOC) has indicated it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need. The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination.
  • Determine if You Will Mandate the Vaccine or Test Employees Weekly. You will need to determine which policy you will adopt. For some employers, collecting and tracking weekly test results may prove too great a burden to not opt into the vaccination mandate.
  • Have a Plan for Tracking Test Results. For employers who allow individuals not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results.
  • Develop a Plan for Handling Accommodation Requests. For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process must be addressed separately from requests for exemptions from any vaccination mandate.
  • Prepare for OSHA Complaints and Inspections. Regardless of employer size, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, will remain in effect.


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