Is your business ready to weather another Covid-19 storm?
On October 12, 2021, the Occupational Safety and Health Administration (OSHA) submitted its draft of the proposed enforcement standards to the White House’s Office of Management and Budget for review (OMB), advancing President Biden’s vaccine mandate for private employers to an impending compliance reality.
How did we get here and what’s the latest on the federal vaccine mandate?
In case you missed it, on September 9, 2021, President Biden announced plans to develop a rule that private employers who employ more than 100 employees either: (1) mandate Covid-19 vaccines for their employees, or (2) implement weekly Covid-19 testing programs. President Biden tapped OSHA, the federal agency that enforces workplace safety, to create the Emergency Temporary Standard (ETS) that will last for only six months. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
We anticipate that the ETS will be issued within the next several weeks. Employers who fail to comply with the vaccine mandate ETS could face costly OSHA investigations and financial penalties.
With the ETS looming large on the horizon, employers must prepare for the mandate as soon as possible. Employers should communicate clearly with their workforce to ensure employees know what is expected as far as vaccination and testing once the mandate becomes effective. Employers should also ensure they have a rigorous process in place to handle requests for accommodation for covered medical disabilities, religious exemptions, and pregnancy-related accommodation requests. Although there are many unanswered questions regarding how to implement the vaccine mandate or testing program, and who is paying for what, it will benefit employers to get out in front of the mandate and begin to prepare for compliance. Currently, the latest statistics indicate that only approximately 55% of employers have issued a vaccine mandate or are strongly considering implementing a vaccine mandate.
What’s happening at the state level?
Challenges to vaccine mandates are currently winding their way through the courts. On October 11, 2021, Texas Governor Greg Abbott signed an executive order banning private employers and other entities from imposing COVID-19 mandates in Texas in a direct challenge to President Biden’s vaccine mandate. Also, today (October 13), Arkansas lawmakers introduced legislation that would allow workers to opt-out of federal or employer vaccine mandates, if they are tested weekly or can prove they have natural antibodies on an annual basis. The bill also allows unemployment benefits to be paid to those employees who are terminated for failing to comply with a vaccine mandate.
The U.S. Constitution prohibits states from interfering with valid federal laws, and most courts (and federal agencies, such as the Equal Employment Opportunity Commission) have supported employers implementing vaccine mandates, subject to reasonable accommodations for disability, pregnancy, and religious beliefs. Notwithstanding, we anticipate more states will follow suit in an effort to challenge the federal Covid-19 vaccine mandate. While Texas’s ban may be superseded by Biden’s mandate, Governor Abbott’s actions set up a showdown between state and federal laws that could take months to sort out in court – well beyond the six-month period for the federal mandate to be in place.
Practically speaking, however, unless a court grants swift emergency relief to stop the federal vaccine mandate, employers should be prepared to implement the appropriate vaccine and testing programs and ensure robust compliance with federal anti-discrimination laws through at least the spring of 2022.
