On September 9, 2021, President Joe Biden issued a strategic plan, Path Out of the Pandemic, which includes a requirement upon larger-sized private employers to issue vaccine mandates to their workforce or be faced with administering weekly COVID-19 testing. The mandate will be implemented through an Emergency Temporary Standard (ETS) to be issued by the Occupational Safety and Health Administration (OSHA). We know that OSHA will require all private employers with 100 or more employees to require either that their employees are fully vaccinated or produce a negative COVID test on at least a weekly basis. We anticipate that OSHA will release the ETS within the next month and can remain in effect for six months maximum without OSHA proposing a permanent standard subject to the regular rulemaking process, including the notice and comment period.
There are a lot of “unknowns” at this time and private employers have a lot of valid concerns. Whether to require employees to be fully vaccinated or submit to COVID testing weekly, each comes with its own implications. Many employers are concerned that vaccine mandates will negatively impact morale or increase employee attrition, especially given the hiring crisis. On the other hand, permitting employees to remain unvaccinated then creates a large financial and operational burden. Employers may be required to pay for COVID-19 testing and will certainly need to devote personnel to create policies and procedures for testing, collecting, and safekeeping COVID-19 test results. Furthermore, it remains unclear if OSHA will give employers a timeline to comply with the mandate or whether the mandate will be applied to minors, temporary workers, and independent contractors.
Based on what we know now, the ETS will also require covered employers to provide paid time off for employees to get vaccinated or who need to recover from vaccination. The same will likely be required for employers who plan to utilize free testing at retailers as their testing mechanism. Additionally, the ETS might also include requirements for employers to ensure their employees’ safety from customers or vendors. We do believe, however, that the mandate will not apply to remote employees, as OSHA’s jurisdiction only applies to worksites.
On the State level, both New Jersey and New York already have COVID-19 vaccination mandates in place for certain industries.
In New Jersey, Governor Murphy issued Executive Order No. 252 on August 6, 2021, which required all workers in specific state and private health care facilities and high-risk congregate settings to be fully vaccinated by September 7, 2021, or submit to COVID-19 testing at least one to two times per week. Additionally, Executive Order No. 253, issued on August 23, 2021, required the same for all public employees, including those at state agencies, authorities, public colleges and universities and those working in schools (preschool through Grade 12); however, the deadline for these workers to be fully vaccinated is not until October 18, 2021.
In New York, former-Governor Cuomo announced on July 28, 2021, patient-facing healthcare workers at public hospitals, and all other state workers were required to get vaccinated for COVID-19 by Labor Day. However, under this requirement, the patient-facing health workers do not have the option to be subjected to weekly COVID testing as all other NY state workers do. Additionally, the former-Governor announced on August 16, 2021, that all healthcare workers in NY, including those in hospitals and long-term care facilities must be vaccinated by September 27, 2021, with limited exceptions for those who have legitimate medical and religious concerns. Furthermore, the NY Health Commissioner issued a determination on September 2, 2021, requiring all teachers, administrators, and other school employees to submit to weekly COVID-19 testing or show proof of vaccination via the CDC Vaccine Card or Excelsior Pass.
Across the country, many States have opposed the mandate. This is the first initiative, however, in which corporate or private mandates to employees derive from a federal regulation. So far, a coalition of twenty-four state attorney generals have written a letter to President Biden urging him to reconsider the mandate and promising to challenge the mandate in court. In some states, however, we know that the courts have already begun issuing rulings on employer mandates. Recently in Ohio, a federal district judge upheld an employer’s policy that mandated their employees get vaccinated or be subject to termination in Beckerich v. St. Elizabeth Med. Ctr., __ F.Supp.3d __, (2021). Other courts have dismissed employees’ claims who have tried to argue similar policies were illegal.
In light of this ever-changing legal landscape, employers need to determine whether to mandate vaccination (with accommodations for medical and religious reasons) or permit and require unvaccinated employees to undergo weekly COVID-19 testing. A good start is to conduct surveys to determine what percentage of the employer’s workforce is unvaccinated. These inquiries are permissible under the law and can be done either by requiring employees to provide a copy of their CDC vaccination card or by questionnaires. Be careful not to violate the Americans with Disabilities Act of 1990 by asking any follow-up questions which could disclose a disability.
From there, an employer is in a better position to determine the scope of the decision. It may be possible to encourage employees to become vaccinated through incentives, such as cash, gift cards, or extra vacation days before implementing vaccine mandates.
When considering weekly COVID testing, it is essential to evaluate the characteristics of your workplace. The CDC advises that testing is most appropriate in workplaces located in communities with moderate to substantial transmission rates and where employees work closely together or with the public. It is also crucial for employers to have a plan for when results come back positive and how to isolate and contact trace within their work place. Remember, all testing procedures must be implemented subject to federal, state, and local laws applicable to the workplace.
Additional information and guidance on testing strategies and recommendations, can be found on the CDC and EEOC websites.
 The author thanks law clerk Naomi Gulama for her assistance in drafting this client alert.