Insights 9/20/21

Earlier this month, the Biden administration announced its boldest effort yet in tackling the COVID-19 pandemic:  that federal workplace safety officials will soon issue a rule that will require all employers with 100 or more employees to either ensure that their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work. As part of the emergency rule that OSHA is expected to create, businesses will also be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects. The announcement was part of the Biden administration’s “Path Out of the Pandemic” plan (the “Plan”), which provides a six-pronged, comprehensive national strategy to combat COVID-19.  The Plan also includes vaccine mandates for federal contractors and many additional healthcare workers, and provides further access to federal financial assistance.

Please see below a summary of the expected rule along with a five-step action plan that we can help you implement immediately.

Vaccine Mandate for Employers with 100+ Employees

The linchpin of the Plan involves OSHA issuing a vaccine/testing rule that will apply to all private employers with more than 100 employees–which is estimated to impact 80 million workers, or two-thirds of the country’s workforce. The expected rule will take the form of an Emergency Temporary Standard (ETS), which allows OSHA to enact regulations that it can enforce immediately if a “grave danger” to worker safety is present. Employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. This likely means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS, though this is not currently clear.

Which Employers Will Be Covered?

Because OSHA will be the agency responsible for issuing and enforcing the ETS, all employers covered by OSHA must comply with the expected ETS, which means, for all intents and purposes, all employers, except, of course, those with fewer than 100 employees.  If you have fewer than 100 employees, then this ETS does not apply to you.

When Will the ETS Likely Be Issued?

Although the Biden administration has not yet established a timeline or deadline for OSHA to issue the ETS, it is clear that the administration wants it done as quickly as possible. It is likely that OSHA will issue the ETS relatively soon–perhaps in the next several weeks, especially if it has been in the works behind the scenes for some time now. After it is issued, to remain consistent with the Biden administration’s proposed deadline for federal workers to obtain the vaccine, OSHA will likely strive for a timeline of 75 days before it starts enforcing the ETS.

Once issued, though, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. In states where the federal government does not have jurisdiction over workplace safety (OSHA-state-plan states such as Utah, California, Tennessee, North Carolina, and Kentucky), however, these agencies will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days of the issuance of the ETS.

How Long Will the ETS Last?

The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.

The Biggest Unanswered Questions

Although details of what the ETS will include are scarce at this point, there are some significant unanswered questions for employers at this point:

  • Will remote employees be covered? Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home.
  • How will the 100-employee threshold be counted? It is unclear whether the 100-employee threshold will be considered on a per location or company-wide basis. Given other standards that mandate certain requirements based on employer size, the threshold likely will be on the total number of workers employed by the company. It is also unclear whether a joint employer analysis will apply to the calculation of employees.
  • Will employers be required to collect proof of vaccination? Whether the ETS requires employers to collect proof of vaccination may have a significant impact on employers.  OSHA’s record retention regulations require that employers preserve and maintain employee medical records for the duration of employment plus 30 years. Therefore, if the ETS requires employers to collect proof of vaccination, you may be required to maintain that record for the duration of the employee’s employment plus 30 years.
  • What type of testing will be required? It is unclear whether the ETS will mandate a particular type of COVID-19 test (antigen, PCR, etc.). While the PCR test is more accurate, it takes longer to receive the results and is more expensive.
  • Who Pays for Testing? While the Plan proposed to improve access to COVID-19 tests–even suggesting that retailers will offer to sell those rapid tests at cost for the next three months–the question of who pays for testing currently remains unanswered. Generally, however, any testing protocols must comply with applicable wage and hour laws, which provide that time spent on receiving employer-required tests should almost always be treated as compensable. Indeed, the Department of Labor’s COVID-19 and the Fair Labor Standards Act Questions and Answers, published before the Plan’s announcement, provides that employers are required to pay employees for time spent waiting for and receiving medical attention (including COVID-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act (FLSA). This may include required testing occurring on employees’ days off if such testing is necessary to perform their jobs safely and effectively during the pandemic. Regarding the tests themselves, while insurance may cover the cost of tests, several states have laws pre-dating COVID-19 that require employers to pay for mandatory medical tests or reimburse employees for any such testing.
  • Will the ETS face legal challenges? As with any broad sweeping policy, any ETS that is adopted is likely to face legal challenges. Governors of many states have already indicated that they intend to challenge any ETS. It is possible that a court could even block enforcement of the emergency rule until the legal challenges are resolved. OSHA will have to prove that there is a “grave danger” to the workers of large employees in order for the ETS to withstand a legal challenge, which may be a difficult task.

What Should You Do? A 5-Step Action Plan for RMI Clients

Here is a five-step action plan that you can implement immediately to put yourself in the best position to comply with the expected ETS. Your RMI HR Consultant is ready to assist you with any aspect of implementing this action plan.

  1. Adopt Procedures for Determining Employees’ Vaccination Status

You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would violate federal or state disability laws. In most cases, the answer to that question alone may be all you really need.

The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.

  1. Determine if You Will Mandate the Vaccine or Allow Unvaccinated Employees to Be Tested Weekly

You will also need to determine whether you will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. For some clients, collecting and tracking weekly test results may burden you so much that you decide to adopt a mandatory vaccination policy.

  1. Develop a Plan for Handling Accommodation Requests

For those clients that adopt a vaccine mandate, you should develop a robust and clear reasonable accommodation policy to address religious and disability issues. Along with RMI’s assistance, you can take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement–an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.

  1. Have a Plan for Tracking Test Results

For clients who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by your health insurance plan and free testing is not feasible, we will assist you in determining whether the applicable federal, state, and local employment laws to require you to pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday.

  1. Prepare for OSHA Complaints and Inspections

As a reminder, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps that you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, remain in effect.

Therefore, in addition to the requirements of the new ETS, OSHA likely will ask for your COVID-19 response plan and training records if it receives a complaint or conducts an inspection concerning the vaccine mandate ETS. If not already in place, develop a COVID-19 policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection. This effort could save your company from paying significant fines.