On Sept. 9, 2021, President Biden announced that COVID-19 vaccination will be mandatory for certain employees in the private sector, in the federal government, and in health care settings. More specifically, the President directed that the Occupational Safety and Health Administration (OSHA) issue an emergency temporary standard (ETS) requiring vaccination or weekly COVID-19 testing of all employees[1], absent disability or religious accommodations.

Covered private employers will be required to provide employees with paid time off to obtain the vaccination and, if necessary, to recover from any side effects employees experience as a result of the vaccination.

While OSHA has not yet released the ETS, covered private employers should prepare for its release by considering the following:

• Compliance may be required immediately or near-immediately after the issuance of the ETS: In States without their own OSHA state plan governing private employers (which include New Jersey, Pennsylvania, and New York), an immediate effective date upon release of the ETS is possible. In states where State plans govern private employers, employers will likely be given a short time frame to comply, possibly as little as 15-30 days.
• Employers will have to implement a record keeping procedure to prove compliance: If retention of proof of vaccination and testing is required, OSHA has substantial record-keeping requirements. Employers should start to prepare to track and retain these documents.
• The mandate will be enforcement by fines: Employers who do not comply with the ETS could face OSHA citations and penalties of up to $14,000 per violation.
• The ETS is expected to set forth how to calculate employees to determine if the threshold is met: Guidance is expected within the ETS as to how employees will be counted (i.e., at one location, total organization population, joint-employer implications, parent company versus subsidiaries, etc.). However, officials have suggested that the 100 employees will be based on total organization headcount, including part-time employees as well as full-time employees. If the total headcount fluctuates above and below 100 at different times of year, the threshold is likely going to be deemed met as long as they headcount is 100 at any time of year.
• The ETS may provide direction regarding who bears the cost of testing: Who pays for the alternative weekly testing is unclear. Most group insurance must currently pay for suspected infection or exposure testing, but routine testing is generally not covered.  Some states also currently require any required medical tests to be paid by the employer.
• The ETS may provide direction regarding whether vaccine-related paid time off will be deducted from accrued PTO: While the President’s directive indicated that employers will be required to provide paid time off to covered employees to get vaccinated and recover from any side effects, whether such time will be deducted from accrued PTO is not clear.  Hopefully, the ETS will provide guidance on this point.
• The ETS may provide direction regarding which tests will be acceptable.  Those employers who are inclined to provide the option of weekly testing to all employees should become familiar with the options that are currently available. There is a rapid test which yields results in only 15 minutes but is more likely to give an inaccurate result and a PCR that does not provide results for 2 to 4 days but is more accurate and more expensive. President Biden spoke of the home testing kits favorably in his announcement, but there are home kits available for both tests. Employers may consider purchasing the home kits to make available to employees.  The Biden administration has indicated that it has secured commitments from Walmart, Amazon and Kroger to sell the kits at cost.   Employers will need to decide if the employees will be required to complete the tests at the workplace or will be permitted to complete the tests at home.  Employers will need to decide whether all test results will be required on a certain day or if the day due will be staggered among employees.
• While the executive order requiring vaccination for federal workers extends to employees who are working from home it is not known whether remote workers will be included in the ETS mandate.
• Employers should consider how they will structure their policies to conform to the ETS.  Employers will have to determine whether they will allow the option of weekly testing to all employees.  In order to make this determination, employers may want to survey the vaccination status of their employees to gauge how burdensome the provision of the option is likely to be.

Although the detail of the ETS remain to be disclosed, Employers would be well served to plan for this upcoming challenge. if you have questions, contact employment attorney Carol Harding.

[1] Subsequent to President Biden’s announcement, OSHA officials have stated that employers will not be required to offer weekly testing as an option and may require all employees to be vaccinated, subject to limited accommodations.