- As part of President Joe Biden's COVID-19 Action Plan, the Occupational Safety and Health Administration (OSHA) will be issuing an Emergency Temporary Standard (ETS) that requires vaccination or weekly testing.
- The new standard will apply to all private sector employers with more than 100 employees.
- Workplace and legal conflict is inevitable, as significant numbers of unvaccinated individuals report that they would refuse vaccination even if it cost them their jobs.
The White House has announced a six-pronged, federal strategy entitled the Path out of the Pandemic, which includes a requirement that employers with 100 or more employees either require vaccinations or weekly negative test results before employees may come to work. The requirement will be announced via a forthcoming Emergency Temporary Standard (ETS) to be issued by the Occupational Safety and Health Administration (OSHA) at some point in the near future. Because the ETS has not yet been published, the details of the new rule are uncertain, but covered employers should start preparing now to deal with this highly charged and complex issue.
According to the Path out of the Pandemic, OSHA "is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work." In addition, the ETS "will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination."
OSHA's forthcoming ETS will expand on its Aug. 13, 2021, advisory guidance, which encouraged (but did not require) employers to mandate vaccinations for workers, subject to legally recognized exemptions. OSHA's past guidance on the use of masks and physical distancing is expected to remain in place. Notably, OSHA's stance on vaccine mandates is consistent with guidance from the U.S. Equal Employment Opportunity Commission, which authorizes workplace vaccine mandates, subject to certain recognized exemptions.
Employers with less than 100 employees will not be subject to the new ETS, but still remain subject to the Occupational Safety and Health Act's General Duty Clause, 29 U.S.C. § 654, 5(a)1, which requires employers to "provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm." The ETS will be instructive as to how smaller employers can meet their obligations under the General Duty Clause.
At this point, the White House's plan raises more questions than it answers. The ETS will likely answer at least some of the most pressing questions, such as compliance deadlines, how booster shots will factor into determining whether an individual is "vaccinated," investigation/enforcement mechanisms, and penalties for noncompliance. Other foreseeable, but important, questions will surely be left unanswered by the ETS.
Perhaps one of the most immediate issues that will present itself under the new plan relates to testing capacity. With 80 million vaccine-eligible but unvaccinated Americans, heightened demand for testing is a virtual certainty. The Path out of the Pandemic calls for additional COVID-19 test manufacturing under the Defense Production Act, and aims to make drive-thru, pharmacy and at-home tests more widely available, but it is unclear how employers should handle employees who opt for the weekly testing route but are unable to produce negative test results despite reasonable efforts. Whether employees will have a chance to retest or otherwise show a false positive test result so that they can return to work is similarly unclear at this time.
Another unanswered question is how the alternative of weekly negative testing will be handled. Will OSHA be strictly agnostic between vaccination and testing, or will the ETS include provisions that promote vaccination? The requirement of providing a weekly negative test itself seems designed to encourage vaccination through inconvenience and burden, but what happens if thousands of employees choose the burden rather than the vaccine?
Yet another issue that employers will face is how OSHA's new standard will interact with other federal laws requiring reasonable accommodations for disabilities and sincerely held religious beliefs, except where the accommodation would impose an undue hardship. Reasonable accommodation laws require employers to engage in an "interactive process" with employees in an attempt to identify alternatives and accommodations that do not impose an undue hardship. How will employers navigate between OSHA's requirement and an employee's claim that a sincerely held religious belief prevents them from being vaccinated? Is weekly testing effectively a preapproved reasonable accommodation? If so, arguing that weekly testing imposes an undue burden seems futile, but what about the administrative burden placed on an employer who must manage dozens or hundreds of employees submitting negative test results every week, and the effect on schedules of potential last-minute failures to provide negative test results?
The answers to these questions will differ from employer to employer, depending on the industry, types of jobs at issue, location of the employer, workplace culture and myriad other factors. The only certainty at this point is that employers' pandemic-related compliance challenges are far from over.
Holland & Knight will continue to monitor developments in this area, and provide further updates when the ETS is published. If you have any questions about the contents of this article, please contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.