Update: OSHA has issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
With the Pfizer COVID-19 vaccine fully approved by the FDA, businesses with more than 100 employees will soon be required to ensure that their workers are fully vaccinated or tested weekly. The requirement is part of a comprehensive national strategy announced by the White House on September 9.
The Occupational Health and Safety Administration (OSHA) is expected to issue an Emergency Temporary Standard (ETS) to implement the requirement, which will impact more than 80 million workers. Here's what we know about the vaccine mandate so far and what's still to come.
1. The vaccine mandate will impact more than 80 million workers in private sector businesses with 100+ employees.
All large companies in the private sector are under the scope of the new requirement. Large companies are defined as those with more than 100 employees. Some 80 million workers will be impacted.
The White House also plans to require vaccination for all federal workers and contractors, as well as over 17 million health care workers at hospitals and other settings that receive Medicare and Medicaid funding.
2. Employees must be fully vaccinated against COVID-19 or tested weekly.
Under the new requirement, covered workers will need to be fully vaccinated against COVID-19. Those that are unvaccinated will be required to submit proof of negative testing weekly before reporting to work.
Employers will also need to give employees paid time off to get vaccinated and recover from any side effects. However, they may require employees to use existing paid time off to do so.
3. All employees must be vaccinated other than in limited circumstances where the law requires an exemption.
Under the Americans with Disabilities Act (ADA) and Title VII, employers may be required to provide reasonable accommodations for employees who cannot get vaccinated due to a medical condition or sincerely held religious belief. The ETS is expected to provide additional guidance on legally required exceptions. However, the weekly testing requirement tied to the new rule is likely to be considered a reasonable accommodation.
4. Masking and social distancing will not be an alternative to vaccination.
Employers can continue to implement universal masking and maintain physical distancing. However, these will not be an alternative to sidestep the new vaccine mandate.
5. The timeline of OSHA’s ETS is still unknown.
The White House has asked OSHA to issue the ETS as soon as possible, although it is not yet known when that will happen. However, the vaccination mandate could become effective almost immediately after the ETS is announced. The ETS will also outline how long employees have to comply with the new mandate. It will be important for employers to be prepared by establishing a vaccination policy that complies with the anticipated OSHA rule. Businesses that do not comply could face fines of up to $14,000.
6. Legal challenges are expected.
The COVID-19 vaccine mandate will face challenges on the grounds of constitutionality. However, a JD Supra article notes that “federal courts have routinely rejected constitutional challenges to vaccine mandates” and that these challenges are unlikely to be successful. OSHA may also face challenges on the validity of the ETS itself. In states that have prohibited vaccine mandates, experts say the federal rule would preempt the state rule.
Many big companies — including Tyson Foods, McDonald’s, and United Airlines — have already made vaccinations mandatory for their employees, and the announcement of this new requirement is causing many employers to reevaluate their vaccination policies. The ETS is likely to survive legal challenges, but regardless of what happens we’re likely to see more companies requiring vaccines for their employees in the coming weeks.