The Biden Administration yesterday unveiled its Path out of the Pandemic – a six-pronged plan designed to further combat COVID-19.  Employers have already struggled to deal with the bevy of ever-changing COVID-19 workplace-related guidance and executive orders.  Now, they must grapple with additional requirements relating to vaccination and testing alternatives.  The Administration’s plan is the latest development in the workplace vaccination phase of the pandemic and presents both challenges and opportunities for employers.

A New Rule Will Require Many Employers to Adopt a Vaccination Policy.

The first prong of the plan is entitled “Vaccinating the Unvaccinated” and notes that 80 million Americans who are vaccine-eligible remain unvaccinated.  To address this, the plan aims to make vaccination requirements “dominant in the workplace” by:

• Requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly;

• Requiring vaccinations for all federal workers and for millions of contractors that do business with the federal government;

• Requiring vaccinations for health care workers at Medicare and Medicaid participating hospitals and other health care settings;

• Calling on large entertainment venues to require proof of vaccination or testing for entry; and

• Requiring employers to provide paid time off to get vaccinated.

These are significant pronouncements, with the first one – requiring “large” employers to vaccinate or test – perhaps the biggest, which we discuss further below.  More specifically, OSHA will issue an Emergency Temporary Standard or “ETS” detailing this requirement.  The term “ETS” may sound familiar to some as OSHA issued another ETS in June 2021 that applied to many employers operating in the health care space.  Now, OSHA will issue an ETS that will cover sufficiently large businesses in nearly all sectors.  It is unclear when the ETS will be issued, but we expect it soon, likely within the next couple of weeks.

The Announcement of the Rule Raises Many Questions for Employers.

We will closely analyze the specifics of the ETS once it arrives, but we’d expect any rule to permit employers to continue to fashion their own policies that exceed the rule’s requirement (e.g., vaccination mandates without a testing alternative; testing more frequently than weekly; or other required safety measures for unvaccinated workers).  We will also wait to see whether and how OSHA addresses other issues tied to the forthcoming rule, including:

1. Is this really a vaccine mandate?  Despite the Administration’s own characterization and media reports about the plan, the biggest question presented is whether the forthcoming rule will mandate vaccines.  That is: will it include a “test out” option for any employee who does not want to become fully vaccinated or will it mandate vaccines and only permit a testing alternative in certain limited scenarios (e.g., where the employee has a disability or religious objection)?  Another part of the plan (which already is embodied in an Executive Order released on the same day) clearly mandates vaccines for nearly all Federal workers and does not reference a testing option, which indicates to us that there will be a testing option here – and therefore no Federal mandate – for private workers.  

While we will have to see what the rule ultimately says, including a testing option in the rule may make it more palatable to both employees “dug in” over their vaccination stance and employers concerned about an ongoing labor shortage, including by helping prevent a scenario where an employee would follow through on a threat to quit his or her job rather than become vaccinated.  (Also, a related issue: if the Administration’s rule essentially validates weekly testing as a viable alternative to vaccination, we wonder whether and to what extent the EEOC will update its guidance regarding the application of the direct threat or undue hardship defenses.)

2. What is an acceptable testing regime?  If one thing is for certain, it is that employers are going to want to know if they will be required to pay for weekly testing – not just the cost of the test itself, but also the time spent taking the test.  Other issues will include what types of tests can be used, whether employers will be required to issue a formal testing policy, what documentation will be required, the implications of a positive test, and whether employees working remotely are subject to the rule, among others.  .

3. How will the vaccination paid leave rules work?  The ETS will require employers to provide paid leave to employees to become vaccinated or recover from the side effects of becoming vaccinated.  Issues here might include how much paid time off will be allotted, at what rate must employers pay their employees, and whether employers will be required to issue a new leave policy with certain provisions (e.g., notice, documentation, concurrent use with other leaves, etc.).

4. How do you count employees for purposes of meeting the 100 employee threshold?  Questions linger regarding which employers will actually be covered for purposes of the forthcoming rule.  Will only employees be counted, or will other service providers (e.g., contractors) be included in the headcount?  Will all types of employees be counted, or just full-time ones and not part-time, temporary, or leased employees?  By when should employers “measure” their workforce (i.e. as of the day the rule goes into effect)?  Is measurement by worksite or does it cover the entire operation?  Will employers count jointly employed individuals; and if so, what joint employer analysis will apply? 

5. What is the definition of fully vaccinated?  The CDC has a definition of “fully vaccinated,” but how will it be redefined over time as more vaccines are approved and as the need for booster shots becomes more apparent?  Will the ETS define when an otherwise fully vaccinated individual reverts back to unvaccinated status after a certain amount of time has passed?  Will the rule take a different approach for immunocompromised individuals? 

6. By when will employees need to be fully vaccinated?  The forthcoming rule will hopefully set forth the date by which employees need to become fully vaccinated (if vaccination is required).  Another part of the plan relating to Federal workers provides 75 days – will the ETS use a similar timeline?  Will it omit a deadline in favor of requiring testing until the date of full vaccination?  And when someone no longer meets the definition of fully vaccinated due to the passage of time, by when would they need to become fully vaccinated again?

7. How can workers prove their vaccination status?  The plan is so far silent on this issue and any forthcoming rule will need to address acceptable forms of proof, safeguards for protecting employee privacy, specific documentation requirements (and prohibitions), etc.  As there is no national vaccination record database, and with forged documentation on the rise, this may present issues for employers seeking to implement the federal directive.

8. Will there be any documentation requirements? Will OSHA require employers to document their efforts to comply with the new rule?  How onerous will the documentation requirements be?  Similar to the proof of vaccination issue above, what steps will employers be required to take to protect employee privacy? 

9. How does this impact unionized employees?  In fashioning the health care ETS, OSHA stated that employers must seek the “input and involvement” of non-managerial employees and their representatives in developing their COVID-19 plans.  Will a similar directive be made here with respect to vaccination and testing policies? 

10. How will enforcement work?  One Biden Administration official stated that employers could expect up to $14,000 per violation, and thus, penalties could easily mount for a non-compliant employer.  We will have to see what the specific rule states in order to gauge potential penalties, including whether penalties are per violation, per employee, or based on some other metric.  Still other questions remain regarding penalties: Is there a cap?  Does OSHA intend to pursue criminal sanctions?  Further, how will the rule protect employees against retaliation?   

Will the new OSHA Rule Withstand Judicial Scrutiny?

Legal challenges are a virtual certainty.  Within hours of the plan’s announcement, certain elected officials made it clear that they would fight the implementation of any rule.  One example is in Montana where employers are prohibited from mandating vaccination.  Will OSHA’s rule preempt Montana’s statute and any other state and local prohibitions?  Generally, an OSHA rule will pre-empt all other rules in the same space, with some exceptions, e.g. if the state rule is provided under a DOL-approved state plan; if the state rule is not specific to the workplace, but rather generally applies to all state citizens (inside or outside work); if the state rule relates to criminal conduct, etc.  But the social, economic and political implications behind this new rule are substantial and courts will have to evaluate whether this is an overreach by OSHA (especially because it is pursuing this requirement on an emergency basis without following standard administrative rulemaking procedures). 

Regardless of whether the rule is upheld, employers should continue to pay close attention to vaccination rules in the jurisdictions in which they operate as certain states and other locales may follow OSHA’s lead in issuing mandates of their own.  Some such requirements already exist: for example, New York City recently required certain businesses to confirm the vaccination status of their employees (and customers) before permitting entry.  Other states and local jurisdictions have required vaccination of healthcare workers.

What Does This All Mean for Employers?

Even before yesterday’s announcement, employers were increasingly starting to mandate vaccination.  Thus, many employers may welcome this development because it will help reinforce their previously-announced mandatory policies.  Others will also welcome it because it will provide them cover to implement currently contemplated ones.  State and local jurisdictions may also use the new rule as cover to implement mandates of their own, which could cover smaller employers as well. 

Other employers will no doubt object because of perceived government overreach or for economic reasons: this requirement could increase their vulnerability to the current labor shortage, particularly where one recent survey found that nearly 70% of unvaccinated workers claimed they would likely quit if required to become vaccinated (although when that data is teased out further, the number drops considerably).  

Whether the new rule will be effective in vaccinating those who currently object to vaccination and otherwise reducing the spread of the Delta variant remains to be seen, and it will certainly take some time to make a considerable impact.  What we can say for certain is that the new rule’s implementation will continue to add to the employment compliance administrative burdens already felt by companies and will present the HR function with its latest employee relations challenge.

We expect any ETS to be released soon and once it is, we will update this post accordingly.  However, any rule will likely be effective immediately (although in some states, it may become effective within 30 days), and thus, employers should start taking steps now to prepare to comply.