The President Delivers a Bombshell: Employers with 100 or More Employees Must Mandate Vaccination

Late afternoon on September 9, 2021, President Biden announced that employers with 100 or more employees that are subject to the jurisdiction of the Occupational Safety and Health Administration (“OSHA”) will need to require their employees to either be vaccinated or show a negative COVID-19 test result on a weekly basis.  The President stated “this is not about freedom or personal choice.  It’s about protecting yourself and those around you.”  He also said “we’ve been patient [with the unvaccinated], but our patience is wearing thin.”

What does this mean for employers?  Is it a good or bad thing?  What are the legal and practical implications?

Can The President Legally Do This?

The short answer is “yes.”  Essentially, the President directed OSHA to develop an emergency temporary standard that will require employers subject to OSHA’s jurisdiction to mandate the vaccine, or require weekly COVID-19 testing, if they employ 100 or more workers.

Although rare, OSHA is authorized to promulgate an emergency temporary standard (“ETS”), and the agency has done so in the past.  In order to adopt an ETS, OSHA must establish that workers are in “grave danger” due to exposure to a hazard, and that an emergency rule is needed to protect them.  That should not be difficult for OSHA to prove as the spread of COVID-19 remains out of control, the effects of the virus are often debilitating (if not fatal), and the vaccines are effective in terms of reducing serious illness and death from COVID-19.

Importantly, an ETS takes effect immediately once published in the Federal Register, where it also serves as a proposed permanent standard.  It is then subject to the usual procedure for adopting a permanent standard, except that a final ruling should be promulgated within six months from the date the ETS was adopted.

The validity of an ETS may be challenged in an appropriate United States Court of Appeals.  Typically, however, courts give significant deference to OSHA as to whether an ETS is necessary.  They will likely do so in this scenario as well.

As employers in the healthcare industry know, OSHA subjected them to the “COVID-19 Healthcare ETS” on June 21, 2021.  Among other things, the COVID-19 Healthcare ETS requires healthcare employers to implement and maintain a “COVID-19 plan,” undertake certain patient screening and management activities, implement standard and transmission-based precautions, use certain personal protective equipment (“PPE”), and engage in “medical removal” practices (typically with pay and benefits) for employees who contracted the virus or were exposed to it in the workplace.

When Will the ETS Be Published?

No one knows at this time.  OSHA’s COVID-19 Healthcare ETS that was published in June 2021 took at least six months to draft.  But that was an extensive and detailed ETS covering many issues facing healthcare employers.  In contrast, it is logical to assume the new vaccination ETS will be much shorter and far less complicated than the COVID-19 Healthcare ETS, meaning we may see it published within several weeks.

Why Limit the ETS to Employers with 100 or More Employees?

It is unclear why the ETS will apply only employers with 100 or more employees, but there are probably two reasons.  First, the more employees an employer has, the greater the risk of the virus spreading.  Second, larger employers are more likely to have the financial resources necessary to deal with employees who do not get vaccinated, but instead undergo weekly testing.  More on that topic later.

How Will this Affect Employee Relations?

The President’s mandate will likely be viewed by many employers as welcome “cover” for them to finally mandate vaccination.  They can honestly inform their employees that the decision to mandate the vaccine was not their decision, but is instead being forced upon them by law.  They can also truthfully inform their employees that if they do not follow the ETS once it is implemented, they will be subject to OSHA citations and civil money penalties.

Will the Mandate Result in Employees Leaving to Work for Smaller Employers?

Some employees may leave their job to work for an employer with fewer than 100 employees (that will not be subject to the ETS), but probably not so many as to pose a significant threat to employers covered by the ETS.  For one thing, smaller employers may now be more comfortable mandating the vaccine even if they are not covered by the ETS.  Moreover, there is nothing in the law that prevents OSHA from revising the ETS in the future to make it applicable to all employers under its jurisdiction, regardless of the number of individuals they employ.

What about the Weekly Testing Alternative (a/k/a “Soft” Mandate)?

What is not known at this time is whether the ETS will force employers to give employees the option of foregoing vaccination and instead being tested weekly for the virus, or giving them that choice only if they have a religious or medical/disability reason to forego vaccination.

Importantly, a “soft” mandate (weekly testing versus vaccination) does not come without significant costs to an employer, and by no means is it a perfect solution.  Consider the following:

• Compensable Time. Does an employee need to be paid for the time spent being tested for COVID-19 pursuant to a soft mandate?  The short answer is typically “yes,” because the employer is requiring the test primarily for its benefit (e., knowing that is does not have an infected individual in its workplace).  Generally speaking, whenever an employee is engaged to perform services that benefit his or her employer, the time spent performing those services is considered compensable time.  For employees not exempt from the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime provisions, that means the employee must be paid while being tested for COVID-19.  State laws may impose additional requirements.  And depending on the test location and when the test occurs, the employee’s travel time to and from the testing facility may also be compensable.  Of course, all of this additional compensable time counts toward determining whether the non-exempt employee worked more than 40 hours in the workweek and is therefore entitled to overtime compensation.
• Cost of the Test. Depending upon the type of COVID-19 test administered and whether the individual being tested has no symptoms, the test may not be free.  If not, then who pays for the test, the employee or the employer?  Assuming there is a charge for the test, the answer typically depends upon state law.  In many states, employers are required to pay for expenses they incur at the direction and for the benefit of their employer.  And even if there is no applicable state law, a low-wage earner who pays for required weekly testing may end up netting less than minimum wage for the week – which then becomes an FLSA problem for the employer.
• Is a Weekly Test Really Valuable? Although an employee may test negative on any given day, the employee may become infected with the virus later that day and then remain in the workplace for an entire week before being retested – thereby spreading the virus to others.  The test may also produce a false positive or false negative result.  And which type of test should be given?  According to the EEOC, an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries because, according to the CDC, an antibody test may not reliably detect antibodies in someone who is currently infected.  Likewise, an employee may test positive for some time period after no longer being contagious.

Will the ETS provide that an employee’s time spent in testing is not compensable, and that the employee must pay for the cost of the tests?  That is very doubtful.  Those costs will likely remain with the employer.  That is why employers should be given the option of not allowing a soft mandate – not to mention the soft mandate’s potential fallacies.

Of course, we will continue to closely monitor the progress of the ETS and we will communicate further about it once we learn more information.