The aim of President Biden’s “Path Out of the Pandemic,” announced on September 9, 2021, is to increase the number of vaccinated workers across the country. To that end, the plan includes several requirements that will affect more than 80 million private sector workers and most workers in the public sector.
Mandatory Vaccination or Weekly Testing for Large Employers of 100 or More. Under the President’s plan, large employers must ensure workers are fully vaccinated or provide a negative COVID-19 test at least once each week. In addition, large employers must provide workers with paid time off to get vaccinated or to recover from the effects of the vaccine. Upcoming regulations will likely address how the 100-employee threshold will be met, whether it will include part-time, temporary or remote workers.
When Must Employer Comply? It is unclear when these mandatory requirements will take effect. According to the White House, the Occupational Safety and Health Administration (OSHA) will develop an Emergency Temporary Standard (ETS) “in the upcoming weeks” implementing the vaccine mandate and ongoing testing requirements. While some suggest that this process will take 30 to 60 days, prior ETSs issued by OSHA earlier this year to combat the pandemic took five months. In addition, employers can expect legal challenges to the authority of the federal government to impose such mandates.
Once the ETS is issued, employers will need sufficient time to come into full compliance since the waiting period between shots for two-dose vaccines will impact when employees will be deemed “fully vaccinated”. The ETS can remain in place for six months but then must be replaced by a permanent OSHA standard at the conclusion of a lengthy rulemaking process.
Paid Time Off and Cost of Testing. OSHA’s ETS will also address the employer’s requirement to provide reasonable time off for vaccination and recovery from the side effects of the vaccine. However, the President’s plan does not address the employer’s obligation to provide paid time off and to absorb testing costs for employees who opt for weekly testing in lieu of vaccination. It remains to be seen whether OSHA will attempt to address these broader issues in the upcoming rules. Employers may be on the hook for these costs under the Fair Labor Standards Act, which generally requires employers to provide paid time off for mandated testing, and the Americans With Disabilities Act, which mandates employers to absorb the costs of required testing if not covered by the employee’s insurance.
Requirements for Federal Workers and Contractors. The President’s plan included an Executive Order mandating vaccines for most federal workers as well as workers under federal contracts entered into on or after October 15, 2021. Unlike the private sector, these federal workers do not have the alternative to forgo vaccination and undergo weekly testing.
What Should Employers Do Now? While all employers are currently permitted to mandate vaccination and/or ongoing testing for employees, some have been reluctant to impose these mandates. Large employers facing these impending requirements should consider whether they want to take on the administrative burdens of weekly testing or simply mandate the vaccine. Regardless of whether the testing option will be permitted, the anticipated OSHA regulations may prompt employers who were concerned about moving too quickly with mandates to impose these requirements to get a jump on compliance. For those employers reluctant to impose mandates, offering paid time off before the federal mandates go into effect may go far in encouraging voluntary compliance. On the employee side, employers might face less resistance from employees who conclude that vaccinations are inevitable considering the impending federal requirements and other societal pressures.
Federal contractors who are not inclined to impose mandatory vaccination or testing must consider whether this position is worth the loss of federal contracts.
Continue to Accommodate Requests for Medical and Religious Exemptions. OSHA’s forthcoming ETS will undoubtedly require employers to reasonably accommodate employees who object to vaccination on medical or bona fide religious grounds. If an exemption is granted, these employees must undergo weekly COVID testing.
Employers are free to require medical documentation to support a medical exemption. However, in the case of religious objectors, these beliefs can be so personal that the Equal Employment Opportunity Commission takes the position individuals are protected even if the religious belief is not supported by the tenants of a formal religious group. Thus, employers should only request verifying documentation in the rare circumstance when the employer has a specific reason to doubt the legitimacy of the employee’s religious objection. However, mere political and philosophical objections are not protected.
Bottom Line: Although the President ’s plan may not go into effect for several months, large employers must prepare now for these forthcoming mandates. All employers, large and small, may feel that the impeding federal mandates provide them with sufficient cover to now move forward with vaccination and testing mandates. In all cases, employers should work with employment counsel to develop vaccination, testing and workplace safety protocols to ensure a workplace free from known safety hazards, such as exposure to the COVID-19 virus.