On September 9, 2021, the Biden administration announced sweeping new measures under the Path out of the Pandemic Plan (“Plan”) to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” The initiatives under the Plan include more widespread vaccination requirements across healthcare, education, and private labor; increased funding for and availability of COVID-19 testing; and paid time off from work to become vaccinated or recover from the effects of vaccination, among others.
- Private employers with 100 or more employees must ensure their workforce is fully vaccinated or require workers who remain unvaccinated to produce a negative test result each week prior to reporting to work.
- OSHA will issue an Emergency Temporary Standard (“ETS”) to implement the new requirements.
- Employers with more than 100 employees will be required to provide paid time off for employees to become vaccinated and to recover from any side effects resulting from vaccination.
- Estimates from the White House suggest that the new rule will affect over 80 million workers in the private sector.
- Employers who fail to comply with the new requirement may be subject to fines up to $14,000.00 per violation.
Under the Plan, workers in most health care settings “that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies,” will be required to be vaccinated as will all federal executive branch employees and employees of contractors that do business with the federal government. For federal employees, the ability to test weekly in place of the vaccination requirement will not be available. Federal employees will have 75 days to come into compliance from the date that the executive order is signed.
The federal employee vaccine mandate extends to teachers and educational staff employed by the federal government including “teachers and staff at Head Start and Early Head Start programs, teachers and child and youth program personnel at the Department of Defense (DOD), and teachers and staff at Bureau of Indian Education-operated schools.” The Plan does not extend this vaccine requirement to all teachers and staff generally, instead calling upon each state governor to require vaccination for all educational employees in their state in order to “keep all children safely learning in school” Whether this is an indication that a broader mandate for educational staff generally is on the horizon remains to be seen.
Anticipated OSHA Emergency Temporary Standard (ETS)
The Department of Labor has indicated that the new OSHA ETS could be available in the coming weeks, however the timeline for employers to comply with the ETS is still unknown.
The exact language of the new ETS will be incredibly important in the practical implementation of these new requirements and will provide much needed direction for employers especially in the realm of testing, confirming an employee’s vaccination status, and protection for employees who are unable to be vaccinated on medical or religious grounds. Where the Plan states that an employer must ensure vaccination or require unvaccinated workers to produce a negative test result, it is not clear whether an employer is obligated to offer testing for those who refuse vaccination for any reason, or whether testing is available only for those who qualify for an exemption.
Another consideration for today’s mobile workforce is the impact of the ETS on remote employees. For employees who do not report in person, will there be a carve out for them from vaccination and/or testing requirements?
And finally, who will bear the cost burden for testing for employers?
Legal challenges loom
The effectiveness of a legal challenge to the new ETS will likely also turn on the specifics of the ETS and how it is implemented. It is imperative for employers to carefully review and digest the ETS once it is released. Several states have already pledged to challenge the ETS once issued, with employers sure to follow. Possible legal challenges to the new mandate could include: whether OSHA has met the standard for issuance of an ETS under the requirements of its own Act, whether the mandate infringes upon a state’s authority to set healthcare policy, and whether the mandate impermissibly discriminates against those who decline the vaccine on medical or religious grounds, to name a few.
Historically, OSHA has issued only 10 Emergency Temporary Standards during its 50-year history, with few surviving judicial review. OSHA issued its tenth ETS in June 2021 relative to COVID-19 which was applicable to healthcare workers only.
The last ETS issued pre-COVID-19 was in 1983 regarding asbestos, and was struck down by the courts. For those employers in states with OSHA-approved state plans, these states will have a period to “either amend their standards to be identical or ‘at least as effective as’ the new standard, or show that an existing State standard covering this area is ‘at least as effective’ as the new Federal standard.” Employers in states with OSHA-approved state plans should closely monitor how the ETS will be implemented in their state.
An ETS is an expedited standard (six months) and requires a determination by the Secretary of Labor that a “grave danger” to workers exists, and the ETS is necessary to combat such danger to protect worker safety. Community acquisition of the virus, breakthrough infections for those who are vaccinated, and previously issued federal guidance that employers considering mandates should provide exemption where appropriate, may give pause as to whether OSHA has met its burden. While the agency is given deference in its findings in support of an ETS, these determinations are not unassailable.
Historical perspective: vaccine mandates
Employers may be interested to know that a federal vaccine mandate of this breadth is unprecedented in U.S. history. The constitutionality of vaccine mandates has been addressed before, most notably in the 1905 Supreme Court case Jacobson v. Massachusetts, 197 U.S. 11 (1905), which dealt with smallpox inoculations mandated by the Cambridge Board of Health during an outbreak of the disease at the turn of the 20th century. Adults who were fit for inoculation but refused were required to pay a $5.00 fine. The Supreme Court upheld the Massachusetts mandate finding that the vaccination requirement fell within the “state’s police power.” However, the Court did not provide carte blanche approval for vaccine mandates without limitation. In Jacobson, the Court reiterated the importance of personal liberty secured by the Fourteenth Amendment, and while recognizing that the “rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint. . . .” such restraint was to “be enforced by reasonable regulations, as the safety of the general public may demand.”
Providing for a weekly testing option mitigates the severity of the mandate and adds a color of reasonableness to the overall scheme. Given the rarity of use of ETS by OSHA in the past, and the fact that many have not survived judicial review, the Biden Administration has no doubt considered this and will try to hedge their bets as much as possible.
The Checkwriters Compliance Department will continue to monitor developments on this issues and be sure to update as more information and/or the ETS is made available.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.