Planning for the COVID-19 ETS: Vaccine mandates, regular testing, and more

President Joe Biden announced the COVID-19 Action Plan, which included broad-ranging initiatives designed to provide a path out of the pandemic, on September 9.  The plan included an element most employers had not expected:  Employers with 100 or more employees must mandate vaccines or require weekly COVID-19 testing of unvaccinated employees. 

After taking a minute to process that announcement, employers and their human resource professionals did what they have done for the past 18 months during the pandemic, they started planning. 

Of course, it’s hard to plan without many specifics. But that’s where employers find themselves right now – with a lot of questions, not many answers, and a lot of planning to do.  For employers already strategizing, below are some key considerations and open issues.

• When will employers get more details about the emergency temporary standards?

The president’s plan calls for Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) that spells out the details of the vaccine and testing requirements for employers with 100 employees.  Both the White House and OSHA have indicated that the ETS will be issued “in the coming weeks.” 

Planning consideration: The very name and nature of the rules suggests some level of urgency, which would be undermined by an extended delay in issuing them. With that in mind, employers should anticipate that OSHA will issue the ETS in early-mid October.  Note that there will then likely be a short period before the new rules become effective.  In states with their own state-OSHA plan (e.g., MIOSHA, CAL/OSHA), the state agency will also need to adopt the federal requirement within 30 days.

• How will employers of 100 employees be determined?

In seeking to understand coverage of the ETS, employers want to know whether the 100-employee threshold will be by location or entity-wide. 

Planning consideration: Given that the White House has stated that the rules will cover up to 80 million employees, employers should expect the scope of the ETS to be broad-based covering employers with at least 100 employees on an entity-wide basis, not by employee count at each location.

• Will remote workers be covered by the ETS requirements?

The focus of the ETS is to limit transmission of COVID-19 at the workplace. OSHA officials have initially indicated that remote workers who are not in contact with others would not be covered by the emergency rule. Interestingly, however, on September 17, the taskforce developing rules for federal government employees announced that remote federal employees will be required to comply with vaccination mandates. 

Planning Consideration: Throughout the pandemic, employers have worked hard to treat in-office and remote employees in the same way. That may end with the ETS. In evaluating whether remote employees should comply with vaccination/testing requirements, employers should consider how different rules may impact the morale of the workforce.

• How can an employer determine current vaccine levels in its workforce?

The EEOC has provided guidance that employers can ask employees about their vaccine status. Employers can also use the survey as a tool to collect proof of vaccination, which the EEOC has also indicated is permissible. 

Planning considerations:  Getting a handle on vaccination levels within the workforce is a good way to assess what it will take to get the workforce vaccinated or conduct weekly testing once the ETS are effective. OSHA indicated in a September 10 conference call that the ETS will outline requirements for collection and verification of vaccination status.  Remember, once vaccine information is disclosed, employers must treat it as confidential medical information.  

• How should employers decide and communicate about mandatory vaccine and/or testing requirements? 

The most significant decision employers have to make is whether they will impose a mandatory vaccination policy or a policy that allows unvaccinated employees to be tested weekly. For many employers faced with both high levels of vaccine hesitancy and tight staffing, it will not be an easy decision.

Planning considerations. In making this difficult decision, employers need to consider what is necessary to keep the workforce safe and, at the same time, keep employees on the job. The right answer will be different based on a variety of factors, including employee population, current vaccine levels, and other considerations unique to each workforce.

Once that decision is made, employers will need to develop a policy that communicates expectations regarding vaccinations and/or testing requirements. The policy should address timing expectations for vaccinations, procedures for testing, the exemption request process, and consequences for non-compliance. Employers will also want to communicate with employees in other ways as well, such as town hall meetings to help explain the process and obtain buy-in.

• What should employers allowing weekly testing consider?

We may not know the testing requirements yet, but one thing employers already know is that managing a weekly testing process will undoubtedly be burdensome (which may prompt some to opt for vaccine mandates), and needs may vary by locations.

Planning considerations.  Even without more information, employers should begin to think through the options for testing (local clinics/pharmacies, on-site health services, home testing). 

Further, employers will also have to implement a process for collecting and tracking weekly test results. OSHA is a recordkeeping-focused agency and employer monitoring is the best way to enforce the requirements of the new rule.

• Will employers have to pay for vaccine and testing time?

Among the few details disclosed by the White House was that employers will have to pay employees for time to receive the vaccine and time off related to vaccine symptoms. The announcement did not address whether use of accrued sick, vacation, or PTO time would meet this requirement. Note that the OSHA ETS for healthcare employers issued in June allows reasonable time off and paid leave for vaccination and related symptoms, including use of accrued time.

Planning considerations.  The announcement left other critical pay issues open, such as whether employers will have to pay for the tests and testing time. The Plan calls for tests to be made more widely available and to be sold at cost for approximately three months at a variety of national retailers.  But, the question of payment for testing time is a significant unanswered question for employers. 

• Will medical and religious accommodations be allowed?

In its guidance on vaccine requirements, the EEOC indicated that vaccine mandates are permissible as long as employers provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. In those circumstances, employers need to engage with employees to identify possible reasonable accommodations.

Planning considerations.  Employers considering a vaccine mandate should prepare for medical and religious accommodation requests. Most employers are already familiar with the interactive process for disability accommodations. This process will be similar, requiring exemption request forms that allow employees to explain the basis for the request. Employers should anticipate that the volume of religious exemption requests will be higher than expected. Employers will need to familiarize themselves with the religious exemption criteria and develop a process for reviewing, assessing, and responding to exemption requests. 

• Will there be recordkeeping requirements?

Employers who are familiar with OSHA already know the answer to this question – Yes, there will be recordkeeping. 

Planning considerations.  Employers should start planning now for how they will obtain and confidentially store vaccine and weekly testing information.  

• Will there be challenges to the ETS?

Yes. Various opponents have already promised to challenge the ETS and they are likely to ask federal courts to stay the effective date of the rules until the challenges are resolved.  OSHA will have to prove that the rules are necessary to protect employees from “grave danger” and that the ETS will protect employees from that danger.

Planning considerations. Some employers may want to dive in and implement the requirements whether they are technically effective or not. Other employers may take a more cautious approach recalling the ballyhooed 2016 FLSA regulations that resulted in significant planning and training, but were ultimately halted days before their effective date by a nation-wide injunction. While the ETS may not become effective on the OSHA’s planned effective date, unless the course of COVID-19 takes an unexpected turn, the new rules will likely be implemented. 

Given the work and logistics involved in developing policies and forms, engaging and communicating with employees, securing testing, tracking results, reviewing and approving accommodations, and maintaining records, it’s not too early to start planning. Those preparations are not likely to be in vain.  

The McDonald Hopkins Labor and Employment Team is working with employers to develop vaccine and testing policies and forms, assess accommodation requests, and understand testing and recordkeeping requirements. Contact your McDonald Hopkins attorney for assistance with COVID-19 compliance.