On Thursday September 9, 2021, President Biden outlined a multi-pronged plan to reduce the number of unvaccinated Americans in the United States, among other COVID-related initiatives. In addition to issuing an Executive Order implementing vaccination requirements for federal workers and requiring vaccinations for healthcare workers, President Biden also directed The Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule impacting private employers with more than 100 employees. The rule will be implemented through the Emergency Temporary Standard (“ETS”), which expedites the otherwise years-long process of developing standards in the event workers are exposed to “grave danger” and the ETS is needed to protect them. The anticipated ETS will require a “fully vaccinated” workforce or require unvaccinated workers to produce a negative test result on at least a weekly basis before coming to work.
No other specifics of the yet-to-be-implemented ETS have been shared by the Administration or OSHA, but the following are questions beleaguered and financially stretched employers hope will be addressed by OSHA in the coming weeks, particularly given current delays and restricted availability of testing across the country:
- Who counts towards the 100+ employee threshold? Will OSHA use the same “Controlled Group” definition as in the Families First Coronavirus Response Act (“FFCRA”)? Should only W-2 employees be counted? Should work-from-home/remote workers be included?
- Will weekly testing an option be available to all employees or only those who demonstrate a valid medical or religious exemption? In other words, will the ETS allow employers to choose between mandatory vaccination vs. mandatory testing in order to retain reticent workers and maintain already precarious workforces?
- Will implementing the vaccine mandate be subject to mandatory bargaining under Collective Bargaining Agreements?
- Who will be responsible for the cost of COVID-19 testing, employers or employees?
- Will the federal government provide financial assistance to pay for additional testing costs?
- Will time spent getting weekly COVID tests (and waiting for test results before being permitted to come to work) be compensable time under the Fair Labor Standards Act?
- What test results will be acceptable (at-home, rapid, or PCR)?
- What information will employers be permitted to ask employees to determine the authenticity of test results and vaccine status?
- How will OSHA define “per violation” for purposes of levying citations and the associated $14,000 penalty (one per employer, one per facility, one per unvaccinated/untested employee)?
- Will the ETS modify OSHA’s recordkeeping requirements that employee medical records be maintained by employers for the duration of employment plus 30 years thereafter?
- Will the ETS be prospective or retroactive such that those already vaccinated will be required to demonstrate proof of vaccination?
- Will this regulation cover future vaccine boosters the Administration has stated it is prepared to begin offering a week from today on September 20, 2021?
- Will employers be required to provide vaccination incentives to employees under any existing incentive policies?
Although the White House has indicated more guidance will be forthcoming by September 24, 2021, the ETS is not expected for at least a few weeks, no effective date for the ETS or deadlines for vaccination have been offered. Legal challenges are also being weighed that may delay, stay or vacate the rule once it is issued.
Frantz Ward will provide updates when the ETS is issued. In the meantime, employers should seek counsel who are familiar with dealing with OSHA, encourage employees to become vaccinated before the ETS is issued, examine their record retention and accommodation policies, and begin to evaluate internal HRIS systems and capabilities for data collection and tracking purposes.