On September 9, 2021, President Biden announced a major expansion to the federal government’s role in combating the recent COVID-19 surge. Although several points of the President’s plan were expected, his newly focused vaccination push for private employers with 100 or more employees is grabbing headlines across the country.

To begin, President Biden announced that he has signed an Executive Order implementing a mandatory vaccination policy for federal employees, who will no longer be able to opt into weekly testing as an alternative. A second Executive Order requires that all contractors doing business with the federal government also be vaccinated. President Biden has further directed the Centers for Medicare & Medicaid Services (CMS) to require COVID-19 vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement. 

In the evening’s biggest news, President Biden announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a weekly negative test result. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement, which takes effect immediately upon publication in the Federal Register. 29 U.S.C. § 655(C)(1). It will take OSHA time to develop and publish the rule, but probably not as long as its most recent ETS on COVID-19 that was in development for six months before being published on June 21, 2021. Public comments will be taken, but only considered in the context of turning the ETS into a final rule.

OSHA only has the authority to issue an ETS if it has determined that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that the ETS is “necessary to protect employees from such danger.” Id. Interest groups and some states have already announced plans to challenge the new rule in court, and opponents will likely seek injunctive relief to enjoin enforcement of the rule pending judicial review. 

In round numbers, this requirement will apply to perhaps 80 million workers in private sector businesses. OSHA is also developing a rule that will require employers with 100+ employees to provide paid time off for worker vaccinations or to recover if they are “under the weather” post-vaccination. OSHA has enforcement authority to impose penalties for non-compliance with standards. While information about penalties under the ETS is not yet available, note that OSHA currently issues penalties for up to $13,653 per violation and it may issue ongoing daily fines for failure to abate once a citation is issued. These numbers could add up quickly for private employers who are out of compliance.

Given the expected spike in testing that will be required as a result of these actions, President Biden also announced the immediate use of the Defense Production Act to procure nearly $2 billion in rapid point-of-care and over-the-counter at-home COVID tests. Full details on the President’s six-pronged strategy can be found at https://www.whitehouse.gov/covidplan/. 

Key Takeaways:

• Monitor developments and prepare. It may be weeks before OSHA publishes the ETS, and opponents may succeed in temporarily or permanently stopping enforcement. Nevertheless, employers with 100+ employees should begin considering plans to comply if the ETS becomes law, which would include developing a written policy and an administration and enforcement process.
• Consider your choices. Employers with 100+ employees could implement a vaccinate-or-test program, as will be required under the ETS. Or, they could impose a vaccination mandate—but then they will need a plan for addressing employee requests for exemptions based on disability or religion.
• Recognize the costs involved. Some costs will be obvious, such as the requirement to pay for time off for employees to get the vaccine. Employers need to plan carefully about other potential costs, including the cost of testing and time off to get tested.
• Prepare a training program. Ensure that point people have been properly trained on administration, record keeping, stepped discipline policies, exemptions, and other similar topics.
• Pay attention to details. More will be known when the ETS is released, but some issues are already apparent. For example, currently many companies have chosen to accept vaccination attestations from employees rather than collect and verify vaccination status. Our experience with OSHA compliance in dealing with a myriad of industrial licensing and certification processes suggests that OSHA will find such a policy noncompliant, and will require employers to verify either by examination of or taking possession of copies of individual vaccination cards, weekly test results, etc. Once employers have this information, they must follow relevant rules on confidentiality and record preservation.
• Prepare for enforcement by OSHA (or State-level OSHA equivalents). Companies that have never experienced OSHA enforcement before should be aware that inspections can (and will) be conducted without notice, and that OSHA has a robust system in place for the intake of employee whistleblower-styled complaints. The same is true for states with OSHA-approved State Plans that are administered by a state agency.

To learn more about vaccine mandates, or for guidance on your organization’s policies, please reach out to one of the contacts listed in this alert.