President Biden recently announced a multi-step plan—dubbed the “Path Out of the Pandemic”—to help curb the resurgence of the coronavirus and increase vaccinations and testing for COVID-19 among US workers.
What We Know So Far
As part of the plan, Biden issued an Executive Order requiring vaccinations for all federal workers and the workers of any business that contracts with the federal government. The Centers for Medicare & Medicaid Services (CMS) announced an action plan to require COVID-19 vaccinations for workers in organizations that receive Medicare or Medicaid reimbursement, which is estimated to impact 17 million health care workers, including those not directly involved in patient care.
Notably, Biden also announced that the Occupational Safety and Health Administration (OSHA) was developing an emergency rule, called an Emergency Temporary Standard (ETS), which will require all employers with 100 or more employees to ensure all of their workers are either vaccinated or submit to COVID-19 testing on at least a weekly basis before entering the workplace. OSHA is also developing a rule requiring that employers with 100 or more employees provide paid time off for their workers to obtain vaccinations and recover from any vaccine side effects. These requirements, which will impact nearly 80 million US workers, will likely be promulgated in the next sixty days and will be effective for up to six months. Violations of these rules will reportedly result in fines of up to $14,000.
What Can Employers Do to Prepare for the Rules?
Before the ETS rules are promulgated, it may be beneficial now for employers to incentivize worker vaccination through rewards (such as gift cards) or penalties (health insurance surcharges), which will ultimately help make compliance with the ETS easier. Thereafter, to the extent that employers with 100 or more workers have not already done so, developing a vaccine and/or testing mandate for your workforce is imperative since employers will likely need to produce evidence of compliance with the ETS in the near future. In determining how your organization will comply, carefully consider the characteristics unique to your organization to help you make this determination. Evaluating the culture of your organization, how and where your employees perform their work (remotely from home or in an office), and whether and how workers have interactions with clients, customers, or the public, among other factors, will help your business determine how best to abide by the forthcoming ETS requirements.
Adopting a Vaccination Requirement
Employers may choose to implement a requirement that all workers become vaccinated against COVID-19. This may seem like the simplest approach, as it obviates the need to maintain ongoing records of the test results of unvaccinated workers. However, if an employer mandates vaccination, employees must be permitted an opportunity to seek medical or religious accommodations in connection with the requirement. In such cases, an employee will submit a request for an accommodation. The employer and employee will then enter into an interactive process to determine whether an exemption from the vaccine requirement is permitted for legitimate reasons, and the appropriate measures that will be employed as an alternative to vaccination.
With respect to a medical accommodation, employers may request information from the employee to substantiate the existence of a medical issue that prevents vaccination, such as an allergy to vaccine ingredients. Employers must maintain the confidentiality of such information.
Religious objections to vaccine mandates are protected to the extent that an employee holds a sincere religious belief that prevents the employee from receiving the vaccination, even if such beliefs are not connected to a religious group. Generally, employers should accept the stated belief of the employee seeking the accommodation, or risk a potential religious discrimination claim. Nevertheless, an employer may seek verification of the religious-based objection, especially if the employer has reason to doubt that the exemption request is based on a sincere religious belief.
Political and philosophical objections are generally not protected. Therefore, employers are usually not obligated to provide an accommodation on this basis.
Permitted accommodations may range from requiring testing, masking, or increased social distancing, and may even extend to placing unvaccinated employees on unpaid leave, pending abatement of COVID-19 infection rates. An employer need not permit an accommodation request if it creates undue hardship for the employer.
Adopting a Testing Requirement
Employers that choose not to mandate vaccines for employees must ensure that all unvaccinated workers produce a negative COVID-19 test result on at least a weekly basis before entering the workplace. No indication has been provided as to whether the ETS will distinguish between the particular type of test result an employee must produce (rapid antigen tests or PCR tests).
Notably, the law of Illinois (and many other states) requires employers to bear the costs of medical tests that an employer requires as a condition for employment. Employers are also likely required by federal law and some state laws to pay employees for the time spent undergoing testing, even if such testing is performed outside of working hours. Accordingly, employers will need to decide how and when such testing will be conducted, and develop a procedure for maintaining the confidentiality of test result records. Pending review of actual ETS requirements, an employer’s testing policy might include:
- Purchasing FDA-approved antigen testing kits and providing them to unvaccinated employees.
- Requiring employees to complete a test at the beginning of each workweek, at the beginning of their workday, outside of the employer’s facilities.
- Providing employees with a designated contact in the organization (HR personnel, for example) who can receive proof of negative test results and allow for entry into the workplace.
- Maintaining a confidential record-keeping process for test results.
Regardless of whether an employer decides to require its workforce to vaccinate or adopt a testing scheme, the new ETS requirements undoubtably create significant obligations for employers in an effort to curtail the pandemic. It is likely that these requirements will be subject to legal challenges, but employers should nonetheless position themselves for compliance, or risk significant penalties for violation.
What Can Employees Do to Prepare for the Rules?
Employees working for employers that will be impacted by the ETS should consider getting vaccinated as soon as possible if they have not already done so. To the extent an employee cannot become vaccinated for medical or religious reasons, the employee should advise the employer of the need for accommodation, provide the information the employer requires to substantiate such a need, and work with the employer to develop an accommodation plan. Such a plan might include testing, masking, increased social distancing, or remote work, to help keep the employee and the employer’s workforce as safe as possible.