On September 9, 2021, President Biden announced several new initiatives aimed at increasing COVID-19 vaccination rates in U.S. private sector workplaces, including directing the Occupational Safety and Health Administration (OSHA) to develop a new Emergency Temporary Standard (ETS) covering the nation’s larger employers. Specifically, the proposed ETS would require all employers with 100 or more employees to impose a “soft” vaccination mandate – that is, to require their employees either to be fully vaccinated, or to produce a negative COVID-19 test result on at least a weekly basis before coming to work. The Administration states that the ETS will impact over 80 million workers. The details of the ETS are yet to be seen – it has not been issued – however, in anticipation of potential issuance of the ETS, below are some key considerations for employers.
When will OSHA issue the ETS, and when will it take effect? In a stakeholder telephone conference held on September 10, 2021, OSHA stated that, although it will move to issue the ETS as soon as possible, the issuance date is unknown at this time. The ETS likely will not be issued immediately, and once it is issued, potential legal challenges could delay implementation. By way of example, OSHA took over six months to issue its recent COVID-19 healthcare ETS (despite President Biden’s direction that it be issued in half that time).
If and when the proposed ETS is issued, employers likely will have at least a short period to come into compliance. The healthcare ETS gave employers 14 days to satisfy most of its requirements, and 30 days to meet others.
Will covered employers need to provide accommodations to employees who cannot be vaccinated due to a protected reason such as a disability or sincerely held religious belief or practice? Not necessarily. On its September 10 conference call, OSHA described the ETS as imposing a “soft” mandate, meaning that employees may choose either to become fully vaccinated or undergo weekly (or more frequent) COVID-19 testing in lieu of vaccination. Under a soft mandate, employees can elect to be tested instead of vaccinated for any reason, and therefore an employer need not entertain employee requests for exemption from vaccination for legally protected reasons such as disability or religious belief. However, if an employee cannot for a protected reason be vaccinated or tested, then the employer would need to consider accommodation requests.
OSHA also confirmed on its September 10 conference call that employers may go beyond the ETS’s requirements and impose a “hard” mandate – in other words, make full vaccination a condition of employment – as some employers have already done. Under a hard mandate, the employer must consider accommodation requests from employees who cannot be vaccinated due to a legally protected reason.
Will employers be required to pay for vaccination, time off for vaccination side effects, or testing? President Biden has stated that the ETS will require employers to provide employees with paid time off to be vaccinated and to recover from vaccination side effects. Specifics regarding this paid time off are currently unclear. During the September 10 conference call, OSHA stated that it has not yet decided whether employers will be required to pay for mandatory testing for employees who are not fully vaccinated.
What proof of vaccination must employees provide? It is also unclear how employers will obtain proof of vaccination from employees. Guidance from the Safer Federal Workforce Task Force requires that federal agencies with “soft” mandates ask federal employees, onsite contractors, and visitors to complete a Certification of Vaccination form attesting to their vaccination status, rather than submit documentation, such as a vaccination card. Whether the OSHA ETS will adopt a similar “attestation” approach remains to be seen.
Will employees who solely work remotely be covered? OSHA stated on the September 10 conference call that fully remote workers will not be covered by the ETS.
Will stakeholders have an opportunity to provide input? OSHA stated on the September 10 conference call that it will not allow stakeholder input prior to promulgation of the ETS. After the ETS takes effect, stakeholders will have the opportunity to make comments as to whether the ETS should be made permanent or adjusted.