In a televised address on Thursday September 9th, President Biden announced that new Occupational Safety and Health Administration (OSHA) rules would be released in coming weeks mandating that employers with 100 or more employees require their employees to complete a COVID-19 vaccination or submit to weekly COVID-19 testing. The president also announced a series of executive orders, that would mandate vaccinations for nearly all federal contractors and new rules from The Centers for Medicare & Medicaid Services (CMS), which would require vaccinations for most medical workers.
The new OSHA Emergency Temporary Standard (ETS) is expected to be released in a few weeks and many questions remain on how the mandate will work and what protections will be afforded to employers who follow it. OSHA does have a history of requiring that certain employers offer vaccinations, but they can typically be refused by employees. The ETS will clearly take a different approach and we advise employers to await that guidance before moving forward.
The move toward mandates has been steadily building across government agencies and private businesses. The Equal Employment Opportunity Commission (EEOC) issued preliminary guidance in 2020 when the vaccines first became available indicating that mandates were permissible by individual businesses. Subsequent updates to that guidance have more explicitly addressed accommodation concerns that may arise under the Americans with Disabilities Act (ADA), Title VII and the Pregnancy Discrimination Act (PDA).
OSHA has also been moving closer to mandates for some time, with guidance issued on August 13, 2021 stating that employers should “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”
Under existing OSHA rules as well as federal and state wage and hour laws, where an employer mandates vaccination and testing, the employer must typically bear the costs, including wages for the time an employee must spend obtaining vaccinations or testing. The preliminary information from the White House does indicate that the OSHA ETS will require employers to compensate employees for time missed for vaccinations, but it is unclear how testing will be handled. While free testing remains broadly available, hours missed from work each week for employees to obtain tests could become costly for employers who allow employees to choose the testing option in lieu of vaccination.
Large employers who fail to implement the OSHA ETS mandating vaccinations may be subject to penalties from OSHA of up to $14,000 per violation
We are also aware of employers that are considering premium surcharges on their health plans for employees who choose not to get vaccinated. This approach to encouraging vaccination has drawn substantial media coverage when it was announced by Delta Airlines. While such an approach may seem less coercive than an outright mandate, it may prove to be more problematic from a compliance standpoint under the Employee Retirement Income Security Act (ERISA), the Affordable Care Act (ACA) and the Health Insurance Portability and Accountability Act (HIPAA). Employers may wish to pause implementing such programs while they await new guidance on the initiatives announced on September 9th.
While small employers may not be subject to the mandates, the regulatory framework created to support the mandates may make it easier for small employers to also mandate vaccinations. Small employers who wish to implement their own vaccine mandates may also find it useful to wait on the OSHA ETS to design their own vaccination programs.
The measures announced on September 9th will likely be subject to legal challenges, but the mechanisms being used, namely the Occupational Safety and Health Act, offer a compelling platform from which to implement a mandate that may be difficult for opponents to defeat.
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