Today the Supreme Court blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers. The court however allowed a more modest mandate requiring health care workers at facilities receiving federal money to be vaccinated.
The vote in the employer mandate case was 6 to 3, with liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority.
The employer mandate would have required workers to be vaccinated against the coronavirus or to wear masks and be tested weekly, though employers were not required to pay for the testing. There were exceptions for workers with religious objections and those who do not come into close contact with other people at their jobs, like those who work from home or exclusively outdoors.
Parts of the mandate concerning record-keeping and masks had been scheduled to take effect on Monday. The administration had said it would not enforce the testing requirement until Feb. 9.
Per the New York Times.
Yesterday, on January 10, the Federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 for employers with 100 or more employees took effect. Although many had anticipated that the U.S. Supreme Court might rule on the legality of the OSHA ETS prior to yesterday, the Court’s failure to do so means that covered employers should be prepared to comply.
The U.S. government applied to the Supreme Court asking for a nationwide stay of the injunctions issued by the lower federal courts, pending full review by the lower Circuit courts. The Supreme Court granted the request and also held an emergency hearing on the CMS Rule this past Friday, January 7, 2022.
Again, however, we have heard nothing further from the Supreme Court. Thus, the CMS Rule remains blocked in 25 states as of today, but continues on in the other 25 states.
It isn’t known when the Supreme Court will issue a decision, but we expect the justices to act relatively quickly. During the hearing, Justice Samuel Alito hinted the Court may decide on a brief administrative stay of the ETS while the matter is considered. We believe the eventual decision may be more measured than many have predicted.
OSHA’s COVID-19 Vaccine Mandate for Large Employers
President Biden recently issued the Path Out of the Pandemic Action Plan, which required, in part, the Occupational Safety and Health Administration (OSHA) to issue regulations implementing a vaccine mandate for large employers. OSHA just released the proposed emergency temporary standard regulations (ETS) which was published and effective on November 5, 2021. Most requirements must be complied with by December 5, 2021. What do broker partners and their clients need to know?
- Applies to: All Employers with 100+ Employees
- Effective: November 5, 2021 and most requirements must be complied with by December 5, 2021
- Testing Requirements Begin January 4, 2022
Who does the vaccine mandate apply to?
The mandate applies to private employers with 100 or more employees at any time while the ETS is in effect; once an employer meets the 100-employee threshold, the ETS applies to the employer regardless of subsequent employee fluctuations. All employees are counted (e.g., full-time, part-time, temporary, seasonal, etc.) on an individual corporate entity basis, regardless of the location of their work (i.e., remote or onsite). Independent contractors are not counted toward the threshold.
The mandate does not apply to federal contractors and subcontractors covered by Executive Order 14042 or healthcare services covered by the OSHA healthcare emergency temporary standard. Although they are counted for purposes of the minimum threshold, the mandate itself does not apply to those who work from home, work alone where other individuals are not present or work exclusively outdoors. The FAQ expressly states that the ETS preempts any contradictory state or local laws.
What is the vaccine mandate?
Employees of covered employers must either be fully vaccinated or, if not fully vaccinated, test weekly (at least every seven days, or within seven days prior to returning to the workplace) for COVID-19 and wear an approved face covering in the workplace. Testing requirements begin January 4, 2022. “Fully vaccinated” refers to a person’s status two weeks after the second shot in a two-dose vaccine (or the second shot of two different vaccines received at least 17 days apart) or the first shot in a one-dose vaccine. Currently, vaccination status is based on the primary series of vaccination used to date and does not require booster shots.
What must covered employers do to comply?
- Employer PolicyImplement and enforce a mandatory vaccine policy requiring all employees to be fully vaccinated, subject to certain medical exemptions and federal reasonable accommodation requirements for disabilities and sincerely held religious beliefs, practices, or observances, and subject to the testing and mask alternative.
- Employee InquiryDetermine the vaccination status of all employees by collecting the required documentation (see below). Employers who have verified employees’ vaccination status prior to the effective date of the new rule do not need to reverify their status. Anyone who does not provide the required documentation must be treated as not fully vaccinated.
- Paid LeaveProvide a “reasonable amount of time” for employees to receive each vaccine dose, including up to four hours of paid leave at their regular rate of pay; this is a new paid leave requirement separate from any other employer-provided paid leave. Provide “reasonable time” (i.e., a minimum of two days), and allow use of paid leave to recover from the side effects experienced from each dose.
- Workplace Exclusion(1) Exclude employees from the workplace who have not provided documentation of full vaccination status and fail to comply with the testing requirement until they provide a negative test result. (2) Exclude employees from the workplace who receive a positive COVID-19 test result or diagnosis until they receive a negative test result, meet the CDC’s return to work criteria, or receive a recommendation to return to work from a licensed healthcare provider. The ETS does not require exclusion of employees who have been exposed to a COVID-19 positive individual.
- Employee NoticeProvide notice to each employee in a language and literacy level that they understand of: (1) OSHA’s vaccine mandate requirements and any employer policies and procedures implementing the requirements; (2) the CDC’s document “Key Things to Know About COVID-19 Vaccines;” (3) employee protections against discrimination and retaliation for reporting work-related injuries or illnesses, exercising their rights, or filing a complaint; and (4) penalties for providing false statements or documentation.
- Record RetentionMaintain a record of each employee’s vaccination status, including preservation of the required proof of vaccination; maintain a roster of employee vaccination status; and maintain records of each COVID-19 test result. These records are, and must be maintained as, confidential medical records.
- Record AvailabilityMake employee vaccine and test documentation available upon request to the employee (or with the employee’s consent) by the end of the next business day; make the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace, available upon request to employees or representatives by the end of the next business day; and provide the Assistant Secretary upon request with the employer’s mandatory vaccine policy and aggregate numbers within four business hours of a request, and all other required records and documents by the end of the next business day.
- OSHA ReportingReport to OSHA within eight hours of learning about a work-related COVID-19 fatality and within 24 hours of learning about a work-related COVID-19 in-patient hospitalization.
What type of documentation of vaccination status may employers accept?
Acceptable proof of vaccination status includes: (1) an immunization record from a healthcare provider or pharmacy; (2) a copy of the COVID-19 Vaccination Record Card; (3) a copy of medical records documenting the vaccination; (4) a copy of immunization records from a public health, state, or tribal immunization information system; or (5) a copy of any other official documentation stating the type of vaccine administered, date(s) of administration, and name of the healthcare professional or clinic site administering the vaccine. Documents may be provided in hard copy, photograph, scanned image, or PDF formats, provided that a physical or digital copy can be made for the employer’s records.
If an employee is “unable” to provide documentation compliant with the foregoing requirements, then they may sign and date a statement attesting to: (1) their vaccination status (including the type of vaccine administered, date(s) of administration, and name of the healthcare professional or clinic administering the vaccine), (2) that they have lost or are otherwise unable to provide the required proof, and (3) a specific declaration (i.e., “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”).
How is COVID-19 testing conducted?
Employees who choose to test weekly may use an FDA-approved diagnostic COVID-19 test (e.g., viral test, not antibody tests), which is not both self-administered and self-read unless observed by the employer or authorized telehealth proctor. In other words, employees cannot just take a home test and tell the employer that they are clear; there must be an additional layer of observation to maintain the integrity of the process. Employees must provide documentation of their test result. Employers have the flexibility to select the testing scenario that is most appropriate for their workplace. Notably, testing is not required for 90 days following a positive COVID-19 test or diagnosis.
When must face coverings be worn?
Employees who are not fully vaccinated must wear face coverings when indoors and when in a vehicle with another person for work purposes. Employees are not required to wear face coverings: when alone in a closed-door room; for a limited time while eating or drinking; for the limited purpose of identification verification; when wearing a respirator or facemask; or when infeasible or doing so would create a greater hazard (e.g., seeing a mouth is important for reasons related to their job duties, work requires use of an uncovered mouth, or use of a face covering presents a risk of serious injury or death to the employee).
What must covered employers pay for?
Employers must provide at least four hours of paid leave for each vaccine dose received (see above). Employers are not required to pay for any costs associated with COVID-19 testing or transportation costs incurred to receive the vaccine unless otherwise required by other federal/state/local law (e.g., California expressly requires payment of wages and costs for vaccine mandates) or collective bargaining agreements. There is no new requirement to pay for employee time off due to exclusion from the workplace, except that paid time may be required by other laws (e.g., paid sick leave), regulations, or collective bargaining agreements. Employers are not required to pay for any costs associated with face coverings unless otherwise required by other laws, regulations, or collective bargaining agreements.
Other Important Information
States with OSHA-approved State Plans have 30 days (i.e., until December 5, 2021) to either adopt the ETS or implement their own standards that are at least as effective as the ETS and 15 days to notify Federal OSHA of the action they will take. Employers in State Plan states should plan to comply with the minimum requirements set by the ETS and look for updates from their state regulatory agencies.
The compliance deadlines for the healthcare provider and federal contractor vaccine mandates were pushed back to January 4, 2022 to align with the large employer mandate.
1. Review the new guidelines here and FAQs here.
2. Implement a vaccine policy and testing procedures or update current policies and procedures for compliance.
3. Provide employees with the required notices.
4. Update record retention and disclosure policies and procedures for compliance.
5. Have appropriate personnel trained on the new requirements.