With the reopening of large segments of the workplace and the emergence of the Delta variant, employers have grappled with difficult and often polarizing issues regarding how to implement COVID-19 vaccination protocols in the workplace. In the healthcare industry particularly, vaccine mandates have been implemented in meaningful degrees, subject to potential exceptions for accommodations based on disabilities and sincerely-held religious beliefs. More recently, larger employers in other industries have announced various measures designed to promote employee vaccinations, including mandates and healthcare premium surcharges like the plan design recently announced by Delta Air Lines.
On September 9, 2021, President Biden significantly changed the current landscape when he announced that all private employers with more than 100 employees will have the following choice: (1) ensure that employees in the workplace are vaccinated, or (2) have unvaccinated employees in the workplace present negative test results on at least a weekly basis. This announcement came as part of the Administration’s six-pronged “Path out of the Pandemic” action plan, which includes, among other things, mandates applicable to nursing homes and hospital facilities as a precondition to CMS reimbursement; employees of federal contractors; and teachers and staff at certain federal agencies. The Biden plan also calls on entertainment venues to mandate proof of vaccination or a negative test before permitting persons to attend events and, in a not-so-subtle message to Governor DeSantis, a requirement for states to adopt vaccination requirements for all school employees.
In terms of timing, private employers do not need to decide immediately whether to mandate proof of vaccination or weekly negative tests from their non-remote workforce. Instead, President Biden has directed the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop an Emergency Temporary Standard (“ETS”) implementing this requirement. Based on a briefing from the DOL on Friday, September 10, 2021, we expect the ETS to be issued in weeks, not days. We also expect that any ETS will face an immediate legal challenge regarding the authority of OSHA to promulgate the ETS and whether aspects of the ETS otherwise withstand constitutional scrutiny. Given that President Biden’s plan places direct obligations on states, certainly, those state administrations that have been vocal against mandates will file lawsuits seeking to enjoin the ETS in whole or in part. While the courts have been in virtual unanimity in refusing to overturn vaccine mandates to date, the ETS likely will face meaningful scrutiny through the appellate courts and any mandates could be delayed further depending on lower court rulings.
In terms of other substantive components of the ETS, the plan demands that covered employers provide paid time off for employees to get vaccinated if they choose to do so (in lieu of weekly testing if the employer includes weekly testing as a permissible option). At least through September 30, 2021, employers with fewer than 500 employees can receive a tax credit associated with any such leave under the American Rescue Plan Act. Based on Friday’s DOL briefing, it is unclear whether the ETS will allow employers to use existing paid leave to satisfy this new paid time off requirement or whether it will create an entirely new bank of paid leave.
Other issues that we expect to be addressed by the ETS, some of which were previewed by the DOL during Friday’s briefing, include the following:
- When the program will go into effect and when it may be lifted (e.g., when we are no longer in a pandemic or earlier if the spread of COVID is reduced);
- As previewed by the DOL, the 100 employee threshold will be counted on a company-wide level and not by location;
- The accommodation analysis that employers should conduct relative to any vaccination mandate, especially considering that the alternative of weekly testing is explicit in President Biden’s plan;
- Whether employers must mandate presentation of a valid vaccination card or whether employees will be permitted to certify their vaccination status through the honor system;
- Whether vaccinated means fully vaccinated, and if booster shots will be addressed at all;
- Whether PCR or home rapid testing will be permitted for unvaccinated employees to show negative test results, and whether challenges in testing capacity could impact the viability of this alternative to mandates (unlikely);
- Whether employers will be required to offer paid time off for unvaccinated employees to take a weekly test (unlikely);
- What kind of recordkeeping requirements will be imposed on employers by OSHA; and
- The fines and penalty program within the ETS for noncompliance, including willful noncompliance, noting that President Biden has announced an intent for fines to be up to $14,000 per violation.
Despite the many questions raised by President Biden’s plan that could take months to be answered via the ETS, employers have been given “cover” to implement vaccination mandates and/or weekly testing requirements as a condition to entry into the workplace. Thus, if employees protest for religious, medical, political, or other reasons, employers can respond by saying, “don’t blame me; we have to do so.”
AGG will continue to monitor developments associated with the ETS and any legal challenges to President Biden’s plan as they unfold.