Employer Alert: What You Need to Know Now About Coming Workplace Vaccine Mandates

OSHA Will Require Large Employers to Mandate Vaccinations or Test Weekly

Man receives shot from nurse in an office setting while medical technicians look on.

The next installment in the Fenway Law series, “Getting Back to the Workplace,” discusses a new federal vaccine mandate for large employers. The COVID-19 Delta variant has stalled economic recovery from pandemic restrictions. Let’s talk about compliance with the new measure and getting workers back to the workplace safely.

President Biden recently announced updates to his administration’s COVID-19 action plan, a Path Out of the Pandemic, which includes sweeping new mandates for workplace vaccine mandates and requirements for weekly testing where vaccines are not mandated.

The plan calls upon the Occupational Safety and Health Administration (OSHA), a unit of the U.S. Department of Labor, to immediately develop and implement an emergency temporary standard (ETS) that will require employers with 100 or more employees to implement mandatory vaccination standards for workers. For those employers that refuse to implement a mandatory vaccine policy, weekly testing will be required.

Here is a quick summary of what employers need to know about the new plan, and a preview for what will be anticipated from OSHA in the coming weeks.

What is the new requirement? Employers with 100 or more employees will be required to either mandate vaccinations for workers or test unvaccinated workers on a weekly basis.

When does the new requirement go into effect? OSHA officials expect to release the ETS in “the coming weeks” and should begin enforcement of the new standards within 75 days following implementation.

Who is covered?

  • By the numbers: The requirement covers all employers with 100 or more employees. Employers should anticipate that the standard issued by OSHA will include global headcount toward this threshold. Smaller employers should note that the federal Equal Employment Opportunity Commission (EEOC) supports the imposition of vaccine mandates, regardless of the size of the workplace. In January, Fenway Law published a brief guide for businesses with workers returning to the office.
  • Special categories: All businesses that receive federal funds, including those receiving grant and research funds and hospitals and care facilities that receive Medicaid/Medicare funding, will be covered by the new standard — regardless of headcount. September 27 update: President Biden recently announced that federal services contractors — and subcontractors at any level — will be required to assure that all employees are vaccinated (unless covered by an accommodation). Contractors that provide products only are exempt from coverage (unless, of course, they are covered due to workforce size). There is no testing alternative for federal contractors. Contract amendments should be issued by mid-October.
  • A note for those in white-collar roles: Many people regard OSHA as an agency focused on manufacturing, services and other technical and manual functions; however, professionals working in office settings (tech, consulting, finance, accounting and the law, to name a few), retail and other industries and settings should be aware that the ETS will apply across the board. Employers in all industries that meet the eligibility threshold should begin preparing for compliance now.

Who may not be covered?

  • State and local government employees: OSHA regulations do not cover state and local government employees, but local regulations may fill the gap. In Massachusetts, for example, Governor Charlie Baker recently mandated vaccination for 40,000 state employees — without a testing alternative.
  • Employees in states with a state-level agency for workplace safety: OSHA has previously approved state-level workplace safety plans in 26 states. Some plans cover government employees only; others cover both government and private sector employees. The ETS will include a requirement that state-level workplace safety agencies adopt a standard as least as stringent as the federal standard within 15–30 days following implementation at the federal level, or the federal standard may be imposed.
  • Remote workers: In keeping with its reluctance to regulate home offices, OSHA likely will not cover employees that work remotely and do not come in contact with other employees in the workplace.

Who pays for testing? If an employer elects to conduct weekly testing in lieu of imposing a vaccine mandate, the employer can expect to cover the cost of testing. Biden’s plan did not specify the type of testing that will meet the standard, which could greatly affect cost considerations. In addition, and consistent with last year’s guidance from the Department of Labor’s Wage & Hour Division, employers can also expect to pay workers to wait for and receive testing. Employers should begin factoring these economic considerations in to their decision making process. Employers should also expect to pay workers for time while getting vaccinated (any comparative cost analysis should take into account the fact that most vaccines require between one and three doses, while weekly testing will continue indefinitely for the duration of the pandemic).

What records must be kept? Many employers established a process for collecting testing data last year, and may have begun collecting vaccination data from workers during the return to the office this year. Employers should consider that information collected pursuant to an OSHA requirement has a retention period of 30 years. Care should be taken to consider the type of sensitive information to be collected, and the volume of data that will need to be stored as a result. Best practices call for a digital approach, and the establishment of lists or spreadsheets to record vaccine and testing verification rather than, for instance, scans or photocopies of vaccination cards. Documentation can create privacy and security concerns, and space considerations for files in hard copy or on servers.

What happens when employers fail to comply? OSHA plans on levying fines of up to $14,000 per violation, which will likely be assessed on a per-facility basis.

What’s Next?

According to reported timelines, OSHA is expected to release the workplace vaccine mandate standard by early October. Enforcement could begin by Christmas. For many employers that have delayed a return to the workplace until January, OSHA enforcement will ramp up right around the time that many workers return to an in-person work routine. Employers, therefore, should be taking practical steps now to prepare for compliance. These steps should include:

  • updates to your COVID-19 related workplace policy suite
  • an analysis of your collective bargaining obligations if your workplace includes union personnel
  • a review of your accommodation process for evaluating requests from individuals that cannot receive a vaccine due to a medical condition, or those that may object on religious grounds
  • a review of your record-keeping practices to assure security and efficiency

This effort typically takes a team approach across an organization, and it is therefore important to involve finance, human resources, information technology and counsel early to assure a smooth plan for implementing your obligations. Fenway Law is available to assist organizations of all sizes with policymaking and compliance in response to the ongoing COVID-19 pandemic.

Michael Loconto is a Boston-based attorney and consultant providing on-demand general counsel services to small- and medium-size businesses and tech startups. For more insights on post-pandemic workforce strategies, employment and privacy issues facing businesses of all sizes, follow Mike on Medium and subscribe through Substack.

Boston's on-demand general counsel for startups and SMBs, specialized in contracts, investigation & compliance. Neutral arbitrator & mediator for the workplace.