On September 9, 2021, President Biden announced a plan to require all private employers with one hundred (100) or more employees to ensure that their workers are fully vaccinated against COVID-19, or produce a negative COVID-19 test each week. This vaccine mandate, part of a larger effort designed to require more than 100 million Americans to get vaccinated, will be implemented through an Emergency Temporary Standard (ETS) to be issued by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA).
To date, OSHA has not released draft regulations, though they are expected within the coming weeks. Once released, it is not clear when the mandate will take effect, but employers may be left with a very tight timeframe to come into compliance.
Expected Legal Challenges
While many have praised the vaccine mandate as a necessary measure to curb the rampant spread of COVID-19 and the dangerous Delta variant, some view the mandate as an overreach of executive authority.
While we expect to see challenges to the vaccine mandate on constitutional grounds, we also anticipate that the challenges may be largely unsuccessful. Federal courts have routinely rejected constitutional challenges to vaccine mandates, provided that they are not discriminatory in nature. In fact, since the 1905 Supreme Court case Jacobson v. Massachusetts, courts have held that compulsory vaccination laws are not inconsistent with the tenets of the Constitution.
A stronger challenge to President Biden's vaccine mandate concerns the validity of the ETS itself. Since its inception, OSHA has only issued ten (10) emergency standards, with varying levels of legal success, leaving the anticipated ETS vulnerable to legal challenge for a lack of precedent. In addition, OSHA is tasked with regulating workplace safety on a national level. If the vaccine mandate is not carefully tailored to address a clear national workplace safety risk, there could be grounds to invalidate the rule. Indeed, some argue that OSHA has no standing to enact a nationwide vaccine mandate where spikes in COVID-19 cases have varied considerably by region.
In any case, the forthcoming ETS is sure to be met with fierce legal challenges from state governments and private businesses alike. The attorney general of Arizona has already filed a lawsuit in an effort to prevent the vaccine mandate from taking effect, and attorney generals and governors from New Hampshire and South Dakota have promised similar legal action.
How to Prepare for What Lies Ahead
All this to say that businesses are understandably struggling with the decision of if/when/how they should roll out a vaccine mandate and testing requirements. The following are action items that employers with one hundred (100) or more employees should consider taking now:
- Create a vaccination policy. Do not wait to
act until OSHA issues the ETS; prepare a vaccination policy that
complies with the anticipated OSHA mandate, i.e., require your
employees to provide proof that they are fully vaccinated, or
require them to submit to weekly testing. Despite the anticipated
legal challenges, the OSHA regulations could become effective
almost immediately after they are announced, and you want to be
prepared. Legal challenges to the mandate will take time to
litigate, and in the meantime, businesses that don't comply
with the mandate could face fines of up to $14,000 or more.
- Prepare to collect vaccination information.
Ensure that you have policies and practices in place to request,
collect, and confidentially maintain records of employees'
vaccination status. Designate a contact person or small team to
whom employees should provide evidence of their vaccination status
(e.g., a copy of their vaccination card). Remember that vaccination
status constitutes confidential medical information and must be
maintained confidentially and securely, separate from an
employee's personnel file.
- Prepare to roll out mandatory testing.
Understanding that unvaccinated employees will have to produce a
weekly negative test result as a condition of continued employment,
begin consider what your testing policy will look like. Will you
offer on-site testing for employees, allow them to self-administer
tests at home, or send them to a third-party location? Consider the
applicable wage and hour laws in your state and local municipality
and be sure to compensate employees for time spent receiving a test
where it is required by law. In addition, prepare policies and
infrastructure for collecting weekly test results from unvaccinated
employee – will you use an app that tracks test results or
identify a team to receive and review test results?
- Consider a mandatory vaccine policy. Although
the ETS will offer employees with the choice to provide proof of
vaccination status or submit to testing, keep in mind that in most
locations, businesses can go further and simply mandate vaccines
for all employees. To that end, determine whether, given the new
ETS, it is in your company's interest to mandate vaccines in
general and forego the testing option. To make this determination,
review factors such as impact on workforce morale and retention,
and the administrative, time, and potential financial costs of
overseeing a program involving multiple weekly tests.
- Prepare to receive accommodation requests.
Employers must provide reasonable accommodations, absent undue
hardship or a direct threat to the health and safety of others, to
qualified individuals that enable them to perform their essential
job duties. Employers must also provide reasonable accommodations,
absent undue hardship, to employees with sincerely held religious
beliefs, observances, or practices that conflict with getting
vaccinated. Be prepared to address questions about accommodations
by having standard forms and established processes for collecting
and reviewing requests.
- Confer with your Foley attorney. As you process these considerations and begin to roll-out vaccination policies, reach out to your Foley Labor & Employment counsel with questions and to ensure compliance with federal and state law.
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.