If You Have 100 or More Employees You May Need to Require Proof of COVID-19 Vaccination

On September 9, 2021, President Biden announced that the Department of Labor’s (DOL) Occupational Safety Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) “that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”

What We Know:

• The new ETS will apply to all United States employers, who are subject to OSHA, who have 100 employees or more. All employees, full-time, part-time, and temporary, are included in OSHA’s broad definition and calculation of employees.
• OSHA does not cover United States, state, or local government employees. However, federal employees and contractors will be subject to their own vaccination requirements.
• States which have their own OSHA approved corresponding workplace health and safety agencies will be required to implement their own equivalent vaccination and testing rules or have the option to adopt OSHA’s ETS.
• Those employers to whom the new OSHA ETS is applicable will be required to ensure that employees are fully vaccinated, which will likely also include future booster requirements.
• Employees who are not fully vaccinated will have to test negative at least once per week.
• Applicable employers will have to provide paid leave to employees who need time to be vaccinated or need to recover from the vaccine.
• Failure to comply with an ETS can be costly, up to a $14,000 penalty per violation.
• Employers who must follow the vaccine ETS will want to develop a clear written communication to their employees to provide protection on issues such as accommodation, discrimination, collection and retention of personal health information, and avoiding medical examination.

What We Will Update You On:

• The timeline for the ETS development and compliance deadline. OSHA ETS can move quickly because they do not require a comment period like other DOL rules. The rule should be issued within the next ten days, and once issued if not invalidated will remain in effect for six months, or until a final regulation is adopted. Employees of the executive branch will be given 75 days to comply with new executive order vaccination requirements. Whether such an extended compliance period will be provided to private employees subject to the ETS is yet to be determined.
• Whether the employer has to pay for the time an employee spends obtaining the weekly tests and the weekly tests themselves. The President announced that new cost-effective COVID-19 testing would be made available in the coming weeks. It is unclear though if reduced cost testing will be available specially for employees and who will be responsible for any such testing costs or time spent obtaining the test.
• If the vaccination requirement will be applicable to employees who work from home.
• Whether employers will be eligible for government assistance for providing paid leave related to the vaccination requirements. Currently, applicable employers who voluntarily provide paid leave for eligible reasons related to COVID-19, including vaccinations, can receive a tax credit under the extension of the Families First Coronavirus Relief Act (FFCRA). However, there are eligibility limitations, such as a 500-employee cap, and the tax credit sunsets on September 30, 2021.
• What reporting requirements there will be, if any. Collecting, recording, and storing vaccination and testing information will highlight privacy concerns.
• If the ETS will address accommodations required by other employment laws, such as medical conditions and sincerely held religious beliefs. Many employers currently accommodate these individuals with work from home, if remote workers are also subject to vaccine or testing requirements this could create further accommodation considerations.
• How the ETS will interact with current state prohibitions on employer and government vaccine requirements. Generally, federally law surpasses state law. However, this creates a legal labyrinth for employers in these states.
• Legal challenges the ETS is likely to face. At least 14 state attorney generals have indicated that they intend to file litigation to challenge any ETS requiring vaccination.

Best practices would be for employers who are not currently requiring vaccinations to explore vaccination and testing options and establish secure and confidential procedures to track vaccination and testing status. All such records must be treated as confidential medical records and kept separate from the normal personnel files.

On Tuesday, September 21, 2021, Leech Tishman’s national Employment & Labor Chair, Philip A. Toomey, along with employment attorney Leah K. Sell will be presenting a complimentary 1-hour briefing to examine the developing ETS and answer frequently asked questions. Interested employers should register here.

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Leah Sell or Philip Toomey.

Leah Sell is an Attorney with Leech Tishman in the Employment & Labor Practice Group. She is based in the Pittsburgh office and can be reached at 412.261.1600 or lsell@leechtishman.com.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.