What the New Federal COVID Vaccination Standard Means for Covered Employers

On Sept. 9, President Joe Biden’s administration outlined its biggest push yet to vaccinate the country’s workforce. Biden announced forthcoming rules that will require many workers to be vaccinated or, in some cases, undergo weekly COVID-19 testing.

In the case of federal workers, federal contractors/subcontractors and most health care workers, the administration is imposing a true vaccine mandate, without a testing alternative. Our focus in this article is Biden’s directive to the Department of Labor and the Occupational Safety and Health Administration (OSHA) to draft an Emergency Temporary Standard (ETS) that requires certain private employers to require their employees to either get vaccinated or submit to weekly COVID-19 testing.

The rule also will require covered businesses to offer employees paid time off to get vaccinated and, if necessary, recover from any side effects experienced after being vaccinated. While OSHA has not yet released the ETS, covered employers should start considering what might be expected of them now so that they are well-positioned for compliance when the rule is released.

Covered Employers

The proposed ETS will apply to all private employers with 100 or more workers. The employee count likely will be based upon a company-wide headcount rather than the number of employees working at a particular site.

Furthermore, consistent with determining coverage for other employment laws, employers will likely need to count all full-time, part-time and temporary employees. Independent contractors and leased employees probably will not be counted. Some employers with fewer than 100 employees may still be covered by the ETS under the integrated employer test — whereby two entities are legally considered to be one employer under a multifactor test.

State and municipal employees will not be subject to the rule, as OSHA does not have authority over state and local government workers.

Timing of the ETS

The ETS will presumably fill in many of the details when it is released, but when will that be? The Biden administration did not specify a timeline or deadline for OSHA to issue the ETS, however, it is evident that the administration is taking an aggressive approach when it comes to COVID-19 vaccinations. The ETS could be released at any time, but it may take as long as another 30 or 60 days.

Preparing for the ETS

For now, there are many unknowns regarding what will be required of employers under the new rule, which complicates companies’ efforts to prepare for compliance. Still, employers can begin considering some likely or potential requirements.

One unknown is who will be responsible for paying for the weekly testing of unvaccinated workers. It is likely that employers will be required to foot the bill since testing will be a requirement of employment. Note that an Arkansas statute requires employers to pay for physical examinations, medical examinations and drug tests that are required as a condition of employment or continued employment, and it is likely that this extends to mandatory COVID-19 testing as well.

Other unknowns include what kind of records companies will have to maintain showing proof of vaccination and testing compliance, what type of test will be accepted, whether employers can administer the tests themselves, what obligation a company will have if an employee misses a weekly test and how long employers will have to come into compliance.

With the federal government now providing some cover, companies that were leaning towards mandating vaccines may decide to implement a mandate now, and may elect not to provide the testing alternative in light of the administrative burdens and costs of weekly testing. If employees are not given the option of weekly testing in lieu of vaccination, it’s essential to develop a process for employees to request exemption for religious or medical reasons.

Companies that will require vaccination or weekly testing only when it’s federally mandated may prefer to wait until the ETS is rolled out before taking any action.

Likely Legal Challenges

OSHA oversees workplace safety, which the agency will presumably argue extends to vaccine mandates. The agency has the authority to issue Emergency Temporary Standards only if it can show both of the following: (1) employees are exposed to grave danger from the hazard, and (2) the ETS is necessary to protect employees from that danger.

Courts have been reluctant to uphold challenged ETSs in the past because they bypass the usual rulemaking process and public comment period. OSHA has only issued nine ETSs in its 30-year history. Six of the nine were challenged, and of those six, only one was allowed to go into effect.

While legal challenges to the ETS are likely, any changes or delays may come after the requirements go into effect and could take time to be resolved. Employers should stay abreast of any announcements from the Biden administration and OSHA relating to the ETS and should contact an attorney if they have questions about how to comply with the new rule and related employment laws, including the complicated subject of medical and religious exemptions.

Michelle Kaemmerling and Shelby Howlett are attorneys with the Little Rock law firm of Wright Lindsey Jennings.