As we discussed in a previous blog, President Biden on September 9 announced proposals for more aggressive action against the spread of Covid-19. Those proposals consist of 3 primary measures: (1) an executive order mandating vaccines for all federal employees and contractors; (2) an order mandating vaccines for health care workers in settings that receive Medicare or Medicaid reimbursement; and (3) OSHA regulations requiring employers with at least 100 employees to require employees to be vaccinated. OSHA has now issued an emergency temporary standard (ETS) specifying the details of its requirements for employers with at least 100 employees. The standard can be found on the Department of Labor’s website at COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov).
By contrast with the rule concerning healthcare workers, this new OSHA rule allows covered employers the option of either mandating vaccinations or requiring employees to produce a negative Covid test each week and wear a face covering. The rule requires covered employers to establish, implement, and enforce either a written mandatory vaccination policy or a written policy allowing any employee 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. The DOL’s website includes links to sample templates for policies to implement those requirements:
Those employers which choose the option to offer the weekly testing must keep in mind that they will be required to pay for any amounts not covered by insurance for those tests. In addition, they must pay nonexempt employees for the time spent undergoing testing during the workday. Collecting and tracking the weekly test results also might be burdensome. On the other hand, employers will be required to provide paid time off for employees to get vaccinated and to recover from any side effects.
Another issue with the mandatory vaccinations will be the requirement to provide reasonable accommodations for employees who claim legitimate exemptions for medical reasons or sincerely held religious beliefs. An accommodation is considered reasonable if it does not cause undue hardship on the employer. Those exemptions can sometimes be difficult to navigate.
We are expecting legal challenges from some industry groups to the ETS. In the meantime, employers should begin planning based on the assumption that the new rules will go into effect.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
