Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates. For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021. However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.

OSHA’s Emergency Temporary Standard

In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS). The ETS will require employers with over 100 employees to do the following:

  1. either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
  2. provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.

State plans will be required to implement equally protective rules within 30 days. Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.

State-based OSHA program updates

Employers must also keep individual states where they operate in mind. The 28 OSHA approved state plans will be required to implement regulations at least as effective as the OSHA ETS within 30 days once released. For example, on October 5, 2021, the California Division of Safety and Health (Cal/OSHA) announced that when federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, Cal/OSHA will implement a comparable standard 30 days after the date of promulgation of the federal standard. On the other hand, some states strongly oppose vaccine mandates and may attempt to slow implementation of the federal requirement once issued. For example, Republican attorney generals in seven states with their own state OSHA plans – Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah, and Wyoming – have vowed to fight a federal testing and vaccination mandate, according to news sources.

Enforcement risks

These new mandates may also be accompanied by a higher risk of enforcement and increased penalties at the federal and state levels.

House Reconciliation Bill for the Build Back Better Agenda. The Bill proposes to modify the 1970 OSH Act by increasing OSHA penalties for “willful,” “repeated,” and “failure-to-abate” violations from $136,532 to a maximum of $700,000. Minimum penalties for such violations would increase from $9,753 to $50,000. Penalties for “serious” violations would increase from a current maximum of $13,653 to $70,000.

CA Senate Bill 606. States may also enhance their enforcement mechanisms, such as the proposed penalty increases under the House Reconciliation Bill. Signed on September 27, 2021, revised Senate Bill 606 (SB 606) in California creates a rebuttable presumption that employer violations are “enterprise-wide” if (1) the employer has a violative written policy that applies to all worksites, or (2) Cal/OSHA has evidence of a pattern or practice of the same violation committed by that employer at more than one of the employer’s worksites. If the employer does not rebut the presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement. Enterprise-wide citations trigger the same fines as willful violations, and are also subject to Cal/OSHA’s authority to issue temporary restraining orders.

SB 606 requires Cal/OSHA to cite employers for each exposed employee as a separate violation where the employer willfully violates a safety standard and qualifies as an “egregious employer,” defined as one that has demonstrated “one or more” of the below characteristics:

  1. Employer has made no reasonable effort to eliminate the known violation.
  2. Fatalities or persistently high rates of worker injuries or illnesses.
  3. Extensive history of prior violations.
  4. Employer has intentionally disregarded their health and safety responsibilities.
  5. Employer’s conduct amounts to clear bad faith.
  6. Employer has committed a large number of violations.

Conduct demonstrating “egregious” violations must have occurred within the five years preceding the citation, and last for five years once the violation has been established. SB 606 also grants specific subpoena authority to Cal/OSHA if employers do not provide requested records.