On September 9, 2021, President Biden announced a series of federal COVID-19 mitigation efforts, which represent an invigorated national approach to reduce COVID-19 transmission and rapidly increase vaccination rates across the country. In addition to a pair of executive orders issued by the President, the Department of Labor (through the Occupational Safety and Health Administration (OSHA)), the Centers for Medicare & Medicaid Services (CMS), the Departments of Defense, Education, the Interior (through the Bureau of Indian Education), Health and Human Services, Transportation, and Homeland Security will all be issuing a variety of executive actions to implement the President’s new “Path Out of the Pandemic COVID-19 Action Plan.”
Unless employers employ federal employees or are federal contractors (more on that below), there is nothing an employer needs to do now to comply with any of the newly announced federal mitigation measures. Nevertheless, and as discussed more fully below, businesses and employers should begin thinking about how to comply with the many new requirements that will likely be going into effect over the coming weeks and months, and plan to be flexible as much of the new COVID-19 Action Plan remains to be fully fleshed out. Below is a discussion of what we know, what we don’t know, and what employers should be doing now.
What We Know Now
The big ticket items announced by President Biden included a to-be-implemented nationwide vaccine or test mandate for all employers with 100 or more employees (Employer Mandate) and two new mandates, via executive order, for virtually all federal employees and federal contractors to be fully vaccinated within about 75 days of the executive orders’ signing (Federal Mandates).
With respect to the Employer Mandate, businesses that fall within its scope will need to implement programs to require their employees to become “fully vaccinated” against COVID-19 or have unvaccinated employees take COVID-19 tests on a weekly basis. As of now, “fully vaccinated” means an individual who has completed the Food and Drug Administration (FDA)-recommended vaccine series (i.e., 2 doses for Pfizer or Moderna vaccine recipients and 1 dose for Johnson & Johnson recipients).
Although the particulars will need to be worked out by the federal government, based on information available to date, the Employer Mandate will be enforced through OSHA, which currently plans to issue the new rule through an “Emergency Temporary Standard” (ETS) having immediate enforceability. Implementing regulations will likely be released on a rolling basis over the next several weeks, through October and November.
In addition to the Employer Mandate, President Biden also issued the Federal Mandates requiring virtually all federal employees and federal contractors to be fully vaccinated against COVID-19. The orders direct each agency to issue separate internal rules for their workforce and contractors. President Biden’s order regulating federal employees also directs agencies to offer vaccine exemptions only as “required by law”, which likely includes exemptions for employees for whom a COVID-19 vaccine is medically contraindicated or who have sincerely-held religious beliefs against receiving vaccinations. Significantly, and unlike the Employer Mandate, the Federal Mandates do not include the option of unvaccinated employees to obtain weekly testing.
What We Do Not Know Yet
Until the ETS is issued, covered employers may be left scratching their heads as to how exactly these anticipated regulations will impact them. Below are some of the most pressing questions.
Covered Employers and Workers
How is the 100+ employee threshold calculated?
A key question that will need to be answered is how the 100+ employee threshold will be calculated. Will it include full-time and part-time employees? Will the threshold be counted over a threshold period similar to how it is done under the Family and Medical Leave Act? Will it include independent contractors, who are typically not counted under other laws?
While we assume there will be some guidance within the ETS, in the event that there is not guidance on that issue, it may be prudent for employers to look at how employees are counted in other applicable federal laws or guideposts, such as the Worker Adjustment and Retraining Notification Act or whether or not the company files an EEO-1 report, which applies to those employers with at least 100 employees.
Will the ETS apply to unionized employers?
Unclear. Although not addressed in President Biden’s announcement, leaders in OSHA have communicated that the ETS is not intended to impact or circumvent the normal collective bargaining obligation under the National Labor Relations Act. Therefore, it is very likely, but not certain, that depending on the applicable collective bargaining agreement, mandatory vaccination will be the subject of collective bargaining between the employer and the union and the Employer Mandate will not apply. But it is possible that these employees will be included in the calculation, and bargaining might be limited to “effects.”
What if an employer is covered by both the Employer Mandate and the Federal Mandates (as a federal contractor)?
Situations could arise where an employer is covered by the Employer Mandate (which allows the weekly testing alternative to vaccination) and the Federal Mandates (that do not allow the weekly testing alternative). We expect (and sincerely hope) that the ETS or the regulations implementing the Federal Mandates will account for this scenario and/or that the rules and orders in that regard are consistent with each other. But employers may need to have different rules for those working on federal contracts.
When can we expect the ETS, accompanying regulations, and, more importantly, guidance on how to comply?
It has been widely reported that OSHA was not aware of the new rule until a short time before it was announced. In a briefing held by leaders at OSHA following President Biden’s announcement, they said the ETS would be issued in the “coming weeks,” but they were unsure as to how many weeks that would be. Most likely, it is being drafted as you are reading this.
How long following the issuance of the ETS will employees at a covered employer be given to be fully vaccinated?
This is currently unknown, but because the White House has communicated that it is giving federal workers approximately 75 days in order to be fully vaccinated, it would not be unexpected for a similar time frame to apply for employees subject to the Employer Mandate.
Who pays for the weekly testing component of the ETS?
This is a significant, currently unanswered question. President Biden did not answer this question in his public announcement and, to our knowledge, OSHA has not yet made any statements on this issue. Will the ETS provide that it is an employee expense? Will it be an employer expense? Or will it be fully or partially covered by the federal government?
The ETS should directly answer this question once and for all. However, odds tend to favor that it will be an “employer” expense. While the weekly testing will be mandated by the federal government, such testing would be a job requirement and, as such, those types of costs are traditionally borne by the employer. The OSHA Health Care ETS stated that when employers used testing as a means to screen employees, the test had to be provided at no cost to the employee. Notably, some states like California actually specify that such testing costs are the employer’s responsibility, so applicable state law and other mandates should be evaluated in the event the ETS is silent on this issue.
What kind of testing will be required or allowed?
The ETS should include some language regarding what type of testing will be required. OSHA is likely to defer to CDC guidance on what tests are reliable, informed consent, and similar issues. The two primary tests are PCR tests and Antigen/rapid tests. Antigen tests can be done quickly at home, in the workplace, in a clinic or doctor’s office, or hospital, and the results can be reported within 15 minutes. A PCR test, on the other hand, is more accurate when it comes to detecting COVID-19, but typically takes several days to get the results back. When demand is high, results can take even longer. The ETS should shed some light here and, in light of the weekly testing requirement, we expect there to be some flexibility in testing options for those that opt for weekly testing in lieu of vaccination.
Who will conduct the testing?
The ETS or accompanying guidance should provide insight on the issue of what permissible options will exist for COVID-19 testing. To date, and in light of state mandates popping up around the country, we would expect there to be some testing options for employees and employers alike. For example, it is likely that employers can conduct such testing on site, provided that certain steps are taken to ensure it is done in compliance with federal and state law. Another option may be that employees conduct the testing on their own, either at a third-party testing facility or with an approved home testing kit. There are pros and cons to each of these testing vehicles for employers, so thought and planning should go into what options are best for the company.
Will testing apply to remote workers?
While the ETS should squarely address this issue, leaders at OSHA have initially indicated that truly remote workers (those that work entirely from home) would not be required to comply with the ETS by either getting vaccinated or engaging in the weekly testing. However, remote workers who occasionally come into the office or interface with third parties as part of their job duties would have to comply with the ETS.
What are covered employers’ obligations with respect to vaccination cards and testing results?
In light of the Employer Mandate, the ETS should address this very important question, especially since it will be the obligation of each covered employer to ensure compliance with the ETS (or face significant OSHA penalties). Therefore, if not done so already, employers will certainly need to request, collect and confidentially maintain vaccination cards from its employees.
Similarly, the ETS should outline whether and how unvaccinated employee testing results will be maintained. For example, what information must be maintained and for how long? Just like vaccination cards, COVID-19 testing results are deemed to be highly confidential under the Americans with Disabilities Act (ADA) and related state law, so guidance should be provided on this important issue.
Reasonable Accommodation Issues
Will employer obligations with respect to providing employees reasonable accommodations change?
Under the ADA and Title VII, and analogous state and local discrimination laws, employers who wish to require vaccinations must have a process to consider requests for waivers as an accommodation based on a disability or religious belief, and what proof may be required for either type of request. The standards vary between disability and religion. There is a small but growing number of claims for exemptions from testing, more so on religious grounds.
There are many websites offering template religious exemption forms, and physicians willing to sign notes for employees that are contraindicated to receiving vaccinations under CDC guidance. Where exemptions are granted, or employers allow other unvaccinated employees to work with regular testing, there are new questions such as what is a sufficiently reasonable accommodation? Will the employer be held to a certain standard to properly document the reasonable accommodation?
The list of outstanding, evolving, and unanswered questions as a result of this Action Plan could go on and on. Some of these questions should be answered in the ETS and subsequent regulations, however, it is very likely that answers to many of these questions (and others that arise as more announcements are made) will be “it depends,” leading to further uncertainly, risk and exposure to employers throughout the country.
What Should Employers Do Now?
Now is the time to prepare and plan for the ETS. While covered employers do not need to immediately implement vaccination mandates and testing procedures, absent a judicial challenge enjoining the implementation of the ETS, covered employers should embrace the reality that they are going to be legally responsible to comply with the Employer Mandate. This means that covered employers will need to eventually implement plans and procedures for properly monitoring who is vaccinated and who is not, as well as those employees who have chosen the alternate option of weekly testing. Employers who have already implemented or are rolling out vaccine mandates or testing options will need to review their procedures once the ETS is issued. Here are some key considerations for covered employers:
- Devise and implement procedures for collecting and storing employee vaccination information, as well as information on those who opt not to vaccinate (and instead choose to be COVID-19 tested on a weekly basis). Since the ETS is intended to place the burden on employers to ensure their employees comply with the vaccination mandate, employers will need to collect and properly store this confidential information.
- Start researching now how and when weekly testing should be implemented. Should it be done on site, at the employees’ homes or at a third-party facility close to the company? There are pros and cons of each of these options and what may be prudent for one company may not be for another company.
- Vet procedures and steps for how the company should collect, gather and protect such confidential information. For example, does the company have to invest in additional technology to store and secure all the additional medical and testing information required of the ETS.
- Implement a communication plan to discuss the ETS and any updated company policies and procedures consistent or in compliance with the ETS.
- Evaluate and ascertain whether a simple mandatory vaccination policy makes more sense (of course, with the only exceptions being for disability and religious accommodation reasons). While this may lead to less weekly COVID-19 testing costs and associated administrative burdens, it could also lead to higher employee turnover and many more religious- and disability-related exemption requests.
- Prepare for more disability and religious exemption requests. Covered employers will need to fully understand the accommodation process and be ready to evaluate (and sometimes push back) when accommodation requests are not being made in good faith or pursuant to the legally recognized exemptions.
Almost as soon as President Biden finished his nationwide address (and likely during the announcements), various government officials, including state governors from Texas, Georgia and Alabama, announced that they would challenge the federal government for its ‘overreach’ of federal powers. It is very possible that some portions of the COVID-19 Action Plan will be struck down by federal courts, meaning that businesses will need to be flexible and proactive in following COVID-19 guidance and to implement and react to changing regulations.
Should you have any questions regarding this major development, please do not hesitate to contact your regular Saul Ewing LLP labor and employment attorney.