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President Joe Biden recently announced a plan that would require all private employers with 100 or more employees to mandate employees to be fully vaccinated against COVID-19 or submit a COVID-19 test twice a week. This mandate will be issued by the U.S. Department of Labor’s Occupational Safety and Health Administration through a rarely used vehicle known as an Emergency Temporary Standard” (ETS). OSHA has not yet published the ETS although it can be expected to arrive within the upcoming weeks.

The potential costs of this mandate and perceived overreach will no doubt trigger legal challenges to the mandate. Arizona Attorney General Mark Brnovich has already filed a lawsuit challenging the mandate.  Further, the ETS’ vehicle with which this mandate is being enacted may open the door to successful challenges. Legal challenges to this will likely challenge whether an ETS is appropriate. An ETS is generally used when workers are in grave danger due to exposure to new hazards that require an emergency standard to protect the workers.  Here, the emergency standard does not make the vaccines any more available to workers; thus, arguably it is not needed to protect the workers.

Despite the fact that legal challenges to this mandate and the use of the ETS will ensue, an ETS can take effect immediately. Accordingly, employers with 100 or more employees must be prepared for the ETS. Employers can prepare by considering the following:

1. Create or Modify Your Vaccination Policy. Employers should anticipate that OSHA will publish the ETS within the upcoming weeks and it will take effect almost immediately. In the meantime, employers can prepare a vaccination policy that complies with the anticipated ETS. For example, employers may begin to require employees to submit to a COVID test twice a week or show proof of complete vaccination. In fact, employers are able to mandate vaccination even without the ETS, while making exceptions for bona fide disabilities and sincerely held religious beliefs. Getting ahead of the ETS eliminates the risk of not being able to comply timely. Employers that fail to comply with the ETS could face fines of up to $14,000 per violation. Although far from final, the House of Representative’s most recent version of the “reconciliation” bill allows for fines to run as high as $70,000 and $700,000 for willful and repeated violations.
2. Gather Vaccination Information. Having policies and procedures in place will allow you to effectively request, collect, and maintain employee vaccination information.  Employers should note that despite the ease with which employees are likely to discuss vaccination history with other employees, such information is confidential and must be treated as such.
3. Prepare for Mandatory Testing. Mandatory testing twice a week for those employees who are not vaccinated will potentially be a great expense.  It is possible that the ETS will require employers to cover the cost of testing. Employers should plan for this now. Employers should consider whether testing will be on-site, through a third party, or at home. Employers must also consider the wage and hour implications of this policy. Perhaps even more difficult than planning for the testing itself, employers should begin preparing for collecting, storing, and maintaining the confidentiality of testing results.
4. Prepare for Accommodation Requests. Employers must accommodate employees who refuse to be vaccinated because of medical reasons or sincerely held religious beliefs.  Employers will likely see an increase for such accommodations following the ETS and should be prepared to address questions about exemptions. They should have a process for collecting, reviewing, and determining such requests.

The above are just a few considerations regarding this new mandate. Jennings, Strouss & Salmon, P.L.C. will continue to monitor this issue as it continues to develop. Moreover, the status of the mandate and ETS will be addressed as part of the Firm’s upcoming Labor & Employment Webinar on November 4, 2021.

For more information on this topic, to ensure compliance with these complex issues, or for help taking any of the steps described above, please contact Daniel J.F. Peabody or another member of the Firm’s Labor and Employment practice group.

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Daniel J.F. Peabody | Read Bio