Last week, President Biden laid out his new plan to ensure higher rates of vaccination against COVID-19. Of great interest to larger, private employers is a mandate that large businesses (those with over 100 workers) require that their employees are either 1) vaccinated against COVID-19 or 2) tested weekly for the virus. In addition, these employers are required to give employees who choose to receive the vaccine paid time off to receive the vaccine and recover from any side effects. Employers who do not comply will be subject to a $14,000 fine per violation. For employers large and small that have been struggling with whether to implement a vaccine mandate, this new requirement may offer company leadership some “cover” in making this choice.

The new requirement will be implemented by the Occupational Safety and Health Administration (“OSHA”) division of the Department of Labor through an Emergency Temporary Standard (“ETS”). If OSHA determines that a “grave danger” to worker safety is threatened, it may enforce the ETS immediately. Of course, given the fact that the ETS has yet to be issued, questions abound.

We have already fielded questions from businesses asking about vaccine verification, remote workers, test administration, type, and tracking, and the like. It is our hope that the forthcoming ETS will provide more clarity on these matters.  Below are our current thoughts on what to expect and how employers should prepare.

Which employers must comply with the ETS mandate?

As to private employers, the mandate applies to companies employing over 100 people. While the current plan is silent on this issue, it appears likely that the “100” employee count will include all employees at the company, not just at a particular location. While smaller employers (under 100 employees) are not required to mandate a vaccine or develop a testing policy under the ETS, it may still be worth considering given that it may reduce the complexity and number of decisions employers must make regarding various COVID policies.

States whose legislatures have created their own state OSHA-like agencies that cover both state and private employers– including California – have 30 days to adopt a similar standard to the ETS (or argue why the state agency’s own regulations about private employer vaccine mandates should carry the day). The remainder of states under OSHA’s direct jurisdiction, including Massachusetts, will be mandated to comply with the ETS when it is issued and will have less of a basis for a legal challenge. (While state-level OSHA agencies exist in some states like New York, New Jersey, Connecticut, Maine, and Illinois, these states’ plans cover state and local government workers only, so private employers in these states must follow the federal rules).

What do employers need to consider?

While specifics about the ETS have not yet been released, it will be important for large employers who fall into this category to consider how a policy like this might impact the day-to-day operations of the business or organization. Dealing with vaccine-related paid time off should present a finite and hopefully de minimis issue (two vaccine doses and recoveries per employee). Currently, an employer can apply for a federal tax credit for voluntarily allowing PTO for COVID vaccines, however, this law expires on September 30, 2021.

Weekly testing, on the other hand, could present a significant issue for employers and employees alike. Not only might employees need to take time away from work on a weekly basis to be tested; they may be required to bear the cost of testing as well (see below). We hope that this will be explicitly addressed in the ETS.  In addition, an employer who provides a testing option rather than a vaccine mandate is knowingly taking on the responsibility to ensure that weekly testing is occurring and to track individual employees’ test results.

What constitutes a violation of the forthcoming ETS?

Finally, while a $14,000 fine “per violation” hangs in the balance according to a Biden administration official, it is unclear at this time what a “violation” is. The ETS could define this as “per employee,” “per day that the mandated policy is not in effect,” “per facility,” or any number of things. It is clear that the hefty fine is meant to further the goal of creating a fully vaccinated workforce; what is unclear are the mechanics of how this mandate will be enforced.

When is all this happening?

While no date has been set for the ETS’s issuance, given that the administration is professing a desire to take an aggressive approach, we expect it to be issued soon.  An ETS can remain in place for 90 days; after that time, OSHA would need to adopt a permanent regulation which is subject to the typical notice-and-comment period.

Responsibility to Pay for Workplace-Related Tests

Currently, employers are not required to pay for employees’ COVID tests under federal law (but some states require employers to pay). Most COVID testing goes through employer-subsidized health insurance, and most testing stations, drive-through pharmacies, and clinics assume that a COVID test relates to exposure or symptoms and not a weekly employee mandate. Health insurances companies may balk at paying for routine employer testing and turn those costs back to the employee. If an employer wants to maintain a generous policy, it may offer to bear the costs of such testing.

          Test Type Requirements

The gold standard of COVID testing is the laboratory-based PCR tests; however, PCR test results are rarely available within 24-48 hours of testing.

At-home rapid antigen testing is an option explicitly encouraged by President Biden. The administration has negotiated with several large retailers (Amazon, Kroger, and Walmart) to offer at-home tests at a discounted rate to make this a feasible option for employees who need to test on a weekly basis, so it appears that an employer may choose either PCR or antigen tests to fulfill the weekly testing requirement.

          Tracking Weekly Testing

If you have decided to allow unvaccinated employees without a religious or medical exemption to be tested – what’s next? Once the tests are performed, the employer will need to systematize tracking of weekly test results, in and of itself a potentially time-consuming task. In addition, OSHA requires that employee medical records be kept for the duration of employment plus 30 years, adding a potentially onerous record maintenance requirement for the employer on top of weekly test tracking.

          Mandates, Testing, and Remote Employees

The new mandate offers large employers two options: 1) mandate vaccines for all employees except those with religious and medical exemptions; or 2) do not mandate vaccines but conduct weekly testing on unvaccinated (for whatever reason) individuals. A middle ground may be a work-from-home option for unvaccinated employees, as OSHA has typically not extended its reach into remote working options.

How do exemptions factor in?

We are also getting many questions from clients about religious and medical vaccine exemptions.

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting vaccinated against COVID-19, the employer must provide a reasonable accommodation unless it would pose an undue hardship on the employer. Unfortunately for employers, the definition of “sincerely held religious belief, practice, or observance” is very broad and there is a presumption that an employee’s request for religious accommodation is based on these sincerely-held beliefs. However, if you are aware of facts that “provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance,” you are allowed to request additional supporting information.

Medical exemptions are more straightforward. An employer is prohibited by the Americans with Disabilities Act (“ADA”) from discriminating against employees based on medical conditions or disabilities. The burden of proving the medical exemption is on the employee, and you can ask the employee to supply reasonable medical documentation (such as a letter from a doctor) supporting this request.

If it is determined that you need to provide an accommodation for either a religious or medical exemption, you can do so by adopting a testing policy, requiring masks, enforcing social distancing while at the workplace, or working from home. The alternative to providing an accommodation is to prove that the accommodation would impose “undue hardship” on the business.  The standard for what constitutes an undue burden under the ADA is markedly higher than under Title VII of the Civil Rights Act which governs religious accommodation requests.  In either case, before denying an accommodation request based on an undue burden analysis, employers should consult with counsel.

In Conclusion

Employers with 100 or more employees will need to determine whether to adopt a vaccine mandate or allow employees to test weekly under the ETS. In so doing, you should consider the day-to-day impacts and long-term obligations relating to your choice. In addition, employers should be prepared for the potential of OSHA inspections related to the enforcement of the ETS and any later regulations that arise therefrom.

We welcome your calls regarding potential vaccination policies and are available for consultation and assistance with preparing one that complies with the ETS when it is issued. We are also available to review employee requests for vaccine exemptions to ensure legal compliance. As always, we are staying on top of this daily-changing COVID in the workplace landscape and are here to help you through it.