On Monday, November 1, 2021, CNBC reported the Office of Management and Budget ("OMB") completed its review of OSHA's Emergency Temporary Standard ("ETS") that will require larger employers to either adopt a policy for mandatory employee vaccinations or an alternative allowing weekly testing and masking for all unvaccinated employees. OMB approval of the ETS is the last step prior to finalizing the rule and its publication in the Federal Register. A spokesperson for the Department of Labor confirmed the ETS will be published in the Federal Register in the coming days. We anticipate the ETS will go into effect upon publication, but employers will be provided with a period to achieve compliance similar to that permitted with federal employees and contractors.
This ETS is the latest in a series of moves by the administration to mandate COVID-19 vaccinations across a wide swath of the nation's workforce. The evolution from the administration's earlier efforts to mitigate infection rates (masking and distancing, barriers, voluntary vaccinations, testing and quarantines) to mandatory vaccinations was prompted largely by elevated transmission rates associated with the Delta variant and occurred relatively rapidly:
- On June 21, 2021, OSHA published an ETS for healthcare and related industries that prescribed screening, masking, distancing, barriers, cleaning and ventilation requirements with exemptions for the fully vaccinated when working in areas where there is no reasonable expectation any person with suspected or confirmed COVID-19 will be present. The ETS identified vaccines as a "critical tool" to combat COVID-19, but did not mandate them.
- On August 13, 2021, OSHA updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to assist employers and workers not covered by the Healthcare ETS. OSHA recommended masking in public indoor settings in areas of substantial or high transmission, masking of individuals at risk of severe disease or not fully vaccinated regardless of transmission levels, and testing following known exposures. OSHA reiterated the effectiveness of vaccines and recommended that employers voluntarily consider the adoption of policies that required workers to get vaccinated or undergo regular testing.
- Things changed dramatically on September 9, 2021, when President Biden released his COVID-19 Action Plan, which included two Executive Orders and a directive to OSHA to issue an ETS requiring employers with more than 100 employees to adopt a policy for mandatory vaccination with an alternative for weekly testing and masking for all unvaccinated employees.
- Executive Order 14043 required federal employees to be fully vaccinated by November 22, 2021, subject only to exceptions required by law.
- Executive Order 14042 required the inclusion of language in new federal contracts for compliance by contractors and subcontractors with workplace safety protocols to be published by the Safer Federal Workforce Taskforce. That guidance, issued on September 24, required covered contractor employees to be fully vaccinated by December 8, 2021, subject only to disability and religious exemptions.
There will be legal challenges to OSHA's ETS. Lawsuits were recently filed by 19 states regarding Executive Order 14042, and we anticipate similar lawsuits for the ETS. Business groups have also appealed to OMB to delay implementation of the ETS until after the holidays. The administration's response to the requests for delay should be known when the ETS is published, but the outcome of the expected legal challenges will come further down the road.
Employers should plan for compliance now. We recommend the following:
- Survey employees as soon as possible to measure the level of vaccination.
- Evaluate the availability of local resources for testing and vaccination.
- Update policies to allow paid time off for vaccination and recovery from related side effects.
- Determine whether to allow the option of regular testing and masking for those who decline vaccination. Unionized employers will undoubtedly be required to bargain over the "effects" of the ETS if requested.
- Consider sponsorship of vaccination clinics for employees.
- Review and update your policies for reasonable accommodation of disabilities and sincerely held religious beliefs. Based on employee reactions to vaccination mandates already implemented by private and public employers, you should anticipate a significant number of accommodation requests. The Safer Federal Workforce Task Force recently published templates for the consideration of accommodations sought by federal employees.
- Employers of fewer than 100 should also pay attention to the ETS and consider implementation of similar measures to comply with OSHA's general duty clause requiring employers to provide a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm."