In September, the Biden Administration directed OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. That promised ETS was published on November 5, 2021, and linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.
One week later, on November 12, 2021, the 5th Circuit Court of Appeals issuing a scathing opinion staying the enforcement of the ETS. In the week that followed, legal challenges were brought in every other Circuit Court of Appeals across the country. On November 16, 2021, the matter was assigned through a lottery to the 6th Circuit Court of Appeals, which has jurisdiction over Michigan, Ohio, Kentucky, and Tennessee. If the 6th Circuit upholds the stay of the ETS—which seems more likely than not—then the ETS will remain stayed while the issue proceeds to the U.S. Supreme Court. If the 6th Circuit lifts the stay of the ETS, then the ETS could potentially go into effect while the issue proceeds to the U.S. Supreme Court.
On November 17, 2021, OSHA formally acknowledged that it had suspended all activities related to the implementation and enforcement of the ETS. However, OSHA and the Biden Administration have vowed to continue the fight and implement the ETS if/when allowed, so at this juncture, we continue to recommend that employers plan and prepare for the potential implementation of the ETS—namely, preparing the required policies and compiling a roster of employees who have been vaccinated (and those who have not).
For a more thorough discussion of the ETS, the pending legal challenges, and our recommendation moving forward, please see our recent webinar on these issues. We will continue to keep you advised as to the status of the ETS and the related legal challenges.
The United States Department of Labor released a long-awaited Emergency Temporary Standard (“ETS”) for private employers with over 100 employees. The 490 page interim final rule answers a number of questions employers have had since the Biden Administration announced its plan in September, including:
What is the application to employers?
The ETS applies to employers with 100 or more employees as of November 5, 2021, regardless of the number of employees working at a specific location. The ETS does not, however, apply to employers covered by the CMS rule or federal contractors, so health care providers (other than physician groups) should review the CMS rule and federal contractors should follow the guidance published by the Safer Federal Workforce Taskforce.
The 100 employee count includes part-time, temporary, and seasonal employees, as well as home workers – however, employees who work exclusively outdoors and/or at home are not subject to the mandatory vaccination/testing requirements.
Do employers have to adopt a COVID-19 policy?
Employers must develop, implement and enforce either: (1) a mandatory vaccination policy; or (2) a policy requiring employees to either get vaccinated or test once a week and wear a face covering at work.
Employers choosing to implement the mandatory vaccine policy should start with OSHA’s sample policy, available here. It contains all the necessary information that an employer needs to implement a vaccine mandate policy in compliance with the ETS. Specifically, it contains information for employers to use regarding vaccination dates, acceptable supporting documentation of vaccination, employee notification and removal from the workplace with a positive COVID-19 test, and information on testing and masking requirements.
Employers who instead decide to have an optional vaccine policy with mandatory weekly testing must also have a written policy, OSHA template available here. If the employer goes with this option, it must “establish, implement, and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering in lieu of vaccination.” Similar to the vaccine mandate policy, the testing policy contains all the relevant information for the mandatory weekly testing and mask wearing, as detailed in the ETS.
If the employer adopts a mandatory vaccination policy, can employees request a religious or medical exemption?
Yes, employers who adopt mandatory vaccination policies cannot require vaccination for employees:
For whom a vaccine is medically contraindicated;
For whom medical necessity requires a delay in vaccination; or
Who are legally entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Do employers have to provide paid leave for employees to get vaccinated?
Employers must provide up to 4 hours of paid leave for employees to become vaccinated and, if necessary, “reasonable time and paid sick leave” to recover from side effects experienced that prevent them from working.
What are the testing requirements and do employers need to pay for testing?
The ETS provides several examples of testing that would satisfy the weekly requirements, including tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer. Testing cannot be both self-administered and self-read.
The ETS clarifies that employers do not need to provide or pay for weekly testing for unvaccinated employees — unless required by other laws, regulations, employment contract, and/or collective bargaining agreements. For example, employers would typically need to pay the cost of testing for employees who receive a medical or religious exemption from a mandatory vaccination policy.
What are the upcoming vaccine deadlines?
Employers must begin providing paid time off to get vaccinated and/or recover from vaccination, and implement face mask requirements, by December 5, 2021. The deadline for employees to become fully vaccinated – meaning the deadline to have received their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – is January 4, 2022.
Are employers required to keep records of employee vaccinations?
Employers must obtain and keep proof of vaccination from employees. Documentation should generally include the name of employee, which vaccine was received, name of the healthcare provider, and date of vaccination. For unvaccinated employees, employers must maintain a record of each test result the unvaccinated employee is required to produce. Notably, the recordkeeping requirements apply only while the ETS remains in effect. During that time, they must be treated like any other confidential medical record.
Can OSHA request access to policies and records?
Employers must provide OSHA with access to their written policy and the aggregate number of vaccinated and unvaccinated employees within 4 hours of a request, and any other records and documents “by the end of the next business day after a request.”
What is the deadline for federal contractors to be vaccinated?
The date for the implementation of the federal contractor vaccine mandate Executive Order is also moved from December 8, 2021 to January 4, 2022.
We will provide updates as we continue to closely analyze the ETS. In the meantime, OSHA’s webinar and FAQs on the ETS are extremely helpful (albeit dense) and address a wide range of issues.
In the past several months there has been a flurry of Executive Orders and other legally binding rules regarding vaccine mandates. Standing first and above the rest are the Executive Order by the Biden Administration mandating federal contractors have a vaccinated workforce without the option for testing (we previously blogged on this topic on September 13, 2021 and on September 27, 2021), and the imminent Emergency Temporary Standard (ETS) to be issued by the Occupational Safety and Health Administration (OSHA).
In the wake of those federal mandates many states have enacted legislation or Executive Orders in direct response. For example, Texas Governor Greg Abbott issued an Executive Order essentially prohibiting vaccine mandates by private employers. This would seem to directly conflict with the federal contractor Executive Order. On the flip side, Illinois has introduced legislation amending its Health Care Right of Conscience Act to clarify that no action will be allowed under the Act when the refusal to accept treatment involves steps taken to reduce the risk of COVID-19 transmission. So, what are employers to make of all this?
First, employers should analyze the nature of their business, the federal rules that most impact their operations, the state(s) they operate in, along with their tolerance for risk before making any decisions regarding these constantly changing issues. At the same time, employers should continue to strongly encourage vaccination in the workplace and follow all feasible COVID-19 safety recommendations in accordance with current guidance from the CDC and OSHA.
State Mandate Bans
In addition to the Texas Executive Order essentially banning vaccine mandates, several states are taking, or have taken, similar action. Montana already prohibits employment discrimination based on vaccination status. Ohio is considering legislation that would require employers to accept negative COVID-19 tests if they implement vaccination mandates, and Arkansas recently sent legislation to its governor that will give workers the option to submit to weekly testing or submit proof biannually of natural antibodies from prior infection. Additionally, Iowa’s Governor Kim Reynolds recently signed a bill into law that does not ban vaccine mandates, but makes it easier for employees to get exemptions, by simply providing a note—and also providing unemployment benefits to employees who are fired for refusing a vaccine mandate by their employer.
Generally speaking federal rules will preempt state law. However, the new federal rules are not applicable across the board to all private businesses, so their impact on each employer must be reviewed individually. For example, the federal contractor Executive Order only applies to certain employers under specific types of contracts with federal agencies, and the upcoming OSHA ETS will only apply to employers with 100 or more employees. So, employers in states with some type of vaccine mandate ban that are not covered by those federal rules may need to comply with their state’s rules.
Even though federal law preempts state law, this does not mean that some states are not gearing up for a fight. The attorneys general of 24 states have already pledged to fight the OSHA rule, and have sent a letter to President Biden stating the 100 employee threshold is arbitrary, that COVID-19 does not present a grave danger to workers and that it is not a true workplace standard. While at this time it seems unlikely these arguments will succeed, they may at the very least be used as a delaying tactic to slow the implementation of the federal rules.
State Laws Bolstering Vaccine Mandates
On the other end of the spectrum from vaccine mandate bans and restrictions, in addition to the Illinois amendment, New York state issued an order requiring health care workers to get vaccinated that did not include an exception for employees with sincerely held religious objections. However, a court temporarily blocked that part of the state’s order while litigation ensues.
Moreover, governors and health agency leaders in 19 states require some or all state employees to be vaccinated against COVID-19 or get regularly tested. Twenty-one states also have some type of requirement for vaccinations of healthcare workers. For the most part these mandates align with the federal rules, and likely will not raise preemption questions.
Conflict with State OSHA Plans
Another issue is that many states have their own occupational safety plans and the federal rules could clash with anti-mandate laws in those states that have their own plans, which are partly funded by OSHA. Twenty-one states run their own plans, which must include workplace protections that are at least as stringent as federal rules for state, local government and private-sector workers.
For example, under Indiana law, state agencies cannot require employees to provide written or electronic proof of COVID-19 vaccination. That conflicts with the upcoming federal OSHA ETS, which will require that employers track and maintain records of employee vaccination status.
While it remains to be seen exactly how this will play out, at least until the OSHA ETS is issued, it is possible that these states with their own safety plans will face lawsuits and also the possibility of the federal OSHA taking over the state-run agencies/plans. These states may also file their own litigation against OSHA and the federal government contesting the OSHA rule.
What this Means for Businesses
So what are employers to make out of all these dizzying mandates, laws and rules they are being bombarded with? Initially, it is important to note that the proposed OSHA rule on large employers will not force them to ensure that their workers are immunized, rather it will allow for weekly COVID-19 testing as an alternative to vaccination. Thus, an employer could comply with both a state ban and federal law by, for instance, requiring all workers to get regularly tested for COVID-19. A rule therefore won’t automatically or necessarily preempt state vaccination bans, but will require a case-by-case analysis by the employer regarding its policies.
Moreover, it should be noted that any choices employers make about their policies should be well-documented and supported with appropriate employee communications and training.
Employers will have to remain vigilant and likely adjust their policies carefully to comply with both the applicable federal rules as they are released and any new state requirements that may be issued. Employers should therefore look to confer with their legal counsel regarding any potential conflicts. Ideally, this discussion should occur as soon as possible once the OSHA ETS is issued given the potential for violations with conflicting rules.
As discussed in our September 9, 2021 blog, the Biden administration has directed OSHA to implement an Emergency Temporary Standard that will require employers with 100 or more employees to ensure their employees are either fully vaccinated or tested weekly for COVID-19. While employers anxiously await OSHA’s Emergency Temporary Standard and guidance on who it applies to and what it entails, federal courts are upholding vaccine mandates that employers have chosen to voluntarily implement.
In August, New York City announced it was implementing a vaccine mandate requiring all public school teachers and employees to be vaccinated. New York City teachers filed a lawsuit seeking to stop enforcement of the vaccine mandate. A Judge from the United States 2nd Circuit Court of Appeals (New York, Connecticut and Vermont) initially granted the teachers an injunction stopping the vaccine mandate on a temporary basis, while it was being reviewed by a three judge panel. On Thursday, September 30, 2021, the three judge panel reversed the judge’s ruling and removed the temporary injunction. The teachers’ attempt to appeal the decision to the U.S. Supreme Court was swiftly denied leaving the vaccine mandate in place. As such, New York City made its vaccine mandate effective today by barring unvaccinated New York City public school teachers and other employees from entering schools and placing them on an unpaid leave.
Similarly, back on September 24, 2021, Federal District Court Judge David Bunning, a Republican appointee in the United States District Court for the Eastern District of Kentucky, refused to block a vaccine mandate issued by a healthcare provider, St. Elizabeth Medical Center. In doing so, the court concluded that the employees’ constitutional arguments were not applicable to a private sector employer; the mandate allowed for both medical and religious exemptions and therefore did not violate the ADA or Title VII; and finally, no employee is “forced” to accept the vaccine. Rather, the court concluded, “these Plaintiffs are choosing whether to comply with a condition of employment, or to deal with the potential consequences of that choice.” The court added, “[i]f an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment.” Beckerich et al v. St. Elizabeth Medical Center, et al 2:21:cv-00105-DLB-EBA, Doc. #34, 9/24/2021.
Both the New York City public schools mandate and the St. Elizabeth mandate are notable in that they are considered “hard mandates” in that neither allows periodic testing as an alternative to vaccination.
In a similar ruling issued in August, the United States 7th Circuit Court of Appeals (Illinois, Indiana, Wisconsin) unanimously upheld Indiana University’s mandate requiring all students to take the vaccine unless they were granted an exemption for medical or religious reasons. The court’s rationale mirrored that in the St. Elizabeth’s case. The court agreed that the plaintiffs “have a right to bodily integrity” but noted that vaccination was not a requirement of all members of the public, but rather “a condition of attending Indiana University” and therefore, the court concluded, “[p]eople who do not want to be vaccinated may go elsewhere.”
These rulings indicate that private employers and organizations are able to voluntarily implement mandatory vaccine policies. However, to limit the risk of legal challenges to a vaccine mandate and potential legal pitfalls when implementing a vaccine mandate (including potential wage and hour issues), employers should work with experienced labor counsel prior to implementing any policy requiring vaccinations.
We will continue to monitor and post on the many rapidly evolving matters regarding vaccine mandates.