The COVID-19 Vaccine Mandate (and More) is Here: Large Employers Must Ensure Employees are Fully Vaccinated or Tested Weekly by January 4, 2022... Unless the Courts Interject.
By: Jackson O'Brien
As discussed in our prior blog entry, on September 9, 2021, President Joe Biden announced that the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) would soon issue an Emergency Temporary Standard (“ETS”) which included a COVID-19 vaccination mandate for large employers. OSHA’s ETS was finally released on November 4, 2021, and was met with immediate opposition from Iowa’s Governor Kim Reynolds. Below is a summary of OSHA’s ETS to help you and your business navigate the ever-changing law and guidance on COVID-19 vaccinations.
The ETS requires all employers with 100 or more employees to ensure that all their employees are fully vaccinated by January 4, 2022. Note that employers with less than 100 employees are not affected by the ETS. Large employers, however, are required by the ETS to establish a vaccination policy, obtain proof of vaccination from employees, maintain records on vaccination status, and inform employees about the ETS. An employee is considered fully vaccinated after receiving both doses of the Pfizer or Moderna COVID-19 vaccines or the single-dose Johnson & Johnson vaccine. Employees that are not fully vaccinated by January 4, 2022, must submit a verified negative COVID-19 test to their employer on a weekly basis. Employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. The ETS also requires employees who are not fully vaccinated to wear a face mask while in enclosed workspaces with others (with some exceptions) starting December 5, 2021, earlier than the vaccination deadline.
Employers are not required by the ETS to provide or pay for any COVID-19 testing but may be required to do so by some other agreement or law. Also starting on December 5, 2021, employers must provide employees with paid time off to get fully vaccinated (up to four hours per dose) and sick leave to recover from any side effects employees may experience that prevent them from working. Further, employers must also report COVID-19-related fatalities and hospitalizations to OSHA upon learning of them within eight hours and 24 hours respectively. Importantly, the ETS states that these new rules supersede any state or local laws on the issues of COVID-19 vaccination, masking, and testing in the workplace.
Note that, in addition to OSHA’s ETS, the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (“CMS”) also announced new details for vaccination requirements among healthcare workers at facilities participating in Medicare and Medicaid. This includes but may not be limited to hospitals, surgery centers, dialysis centers, home health agencies, and long-term care centers. Healthcare workers at these facilities are also required to be fully vaccinated by January 4, 2022. This rule applies regardless of whether the healthcare worker is employed at a clinical or nonclinical facility, and includes employees, students, trainees, and volunteers who work at such facilities. Notably, the ETS does not apply to workplaces subject to CMS’s rule, so employers need not track compliance with both rules.
The same January 4, 2022, vaccination deadline was also set for federal contractors. That means the former vaccination deadline for federal contractors of December 8, 2021, no longer applies. Further, OSHA’s ETS also does not apply to workplaces subject to the federal contractor mandate. More information on the federal contractor mandate is available in our prior blog entry.
Legal challenges to OSHA’s ETS are inevitable. An ETS allows OSHA to pass emergency rules to address a “grave danger.” Since its inception in 1971, OSHA had issued only six ETS rules prior to the COVID-19 pandemic. Only one of those six ETS rules ultimately survived challenges in court. The surviving ETS was issued in 1978 and concerned exposure to the chemical acrylonitrile used in rubber manufacturing. Dozens of state attorney generals and other various advocacy groups have already threatened to fight the new ETS issued in court.
In Iowa specifically, Gov. Reynolds vowed to take immediate legal action in response to the mandates. Gov. Reynolds drew a fine line, stating that the vaccine is the “best defense against COVID-19,” but that the ETS violated “Iowans’ right to make healthcare decisions” for themselves. Soon, it will be for the courts to expeditiously weigh those competing interests in the coming days and weeks as the December 5, 2021, and January 4, 2022, deadlines approach. Iowa has already joined nine other states in suing the Biden Administration over the prior federal contractor vaccination mandate. According to the Iowa Department of Workforce Development, the ETS could apply to more than 2,200 Iowa businesses, encompassing approximately 923,000 employees in the State.
As soon as changes in the law occur related to the COVID-19 pandemic, our firm aims to get you updated guidance as fast as possible. Although the announcement of this new ETS is substantial, it will undoubtedly be followed by subsequent court cases, interpretations, amendments, and so on. We’ll be sure to keep you and your business informed as those developments occur. If you have questions related to this blog entry, prior entries, or what might lie ahead, please feel free to reach out to our firm. We would be happy to help you through these complicated issues.