President Biden’s Path Out of the Pandemic Plan is estimated to affect nearly 100 million workers in the United States. Central to the plan is a vaccine mandate for large employers, but the plan also makes use of federal contracts that may affect businesses of any scale. The coverage here is broad, so do not assume that businesses with fewer than 100 employees are automatically exempt.
President Biden directed the Occupational Safety and Health Administration to issue a rule requiring businesses with 100 or more employees to ensure that all employees either vaccinate or submit a negative test weekly. The administration estimates that this requirement will impact over 80 million workers. It is unclear what exceptions, if any, will be made for individuals who work remotely.
OSHA’s mandate will take the form of an Emergency Temporary Standard, or ETS. Unlike OSHA’s pandemic guidelines, which are only guidelines, an ETS is a binding rule that OSHA may promulgate to protect workers against “grave danger.” An ETS will have the force of law, immediate effect, and will last for six months, unless superseded by a permanent regulation. An ETS is a novel power, rarely employed by OSHA.
We should expect that the ETS will have only two exceptions: a religious exception for sincerely held religious beliefs; and medical contraindications. These exceptions likely will apply only to the vaccine mandate and not the weekly testing mandate. Still, it’s possible that OSHA may narrow these. Arguments can be made that non-vaccination imposes an undue hardship for businesses, particularly in the Title VII sphere where the threshold for an undue hardship is substantially lower than under the Americans with Disabilities Act.
We should also expect lawsuits. State governments and certain businesses will almost certainly challenge the ETS. This will reopen age-old debates over state sovereignty and federal preemption. Thus far, however, the U.S. Supreme Court has allowed vaccine mandates to take effect, relying on the 1905 precedent of Jacobson v. Massachusetts.
For large businesses debating whether to institute a vaccine mandate, that debate is effectively over. So too is the debate over incentive programs. Incentive programs must have an absence of coercion; a vaccine mandate from the government calls that element into question.
It remains unclear how the 100-employee count will be measured and who will pay for the weekly COVID-19 tests and whether those costs may be passed on to the unvaccinated employee. These questions and many others will be addressed in the forthcoming ETS.
Protocols for federal contractors
Shortly after announcing the Path Out of the Pandemic Plan, President Biden issued an executive order entitled, “Ensuring Adequate Covid Safety Protocols for Federal Contractors.” The order stopped short of ordering all federal contractors to vaccinate, but leaves to the Safer Federal Workforce Task Force (SFWTF) to develop new contractual terms for all federal contractors and subcontractors. Those terms will likely include a vaccine mandate. Once developed, they will apply downstream to all lower-tier subcontracts, which is a broad net.
The plan will also require workers in health care institutions that receive federal money to vaccinate. This includes not only federally qualified health centers, but any institution that receives Medicaid or Medicare reimbursement.
The Centers for Medicare & Medicaid Service will develop further guidance, but for now, the vaccine mandate is intended to encompass all providers, clinical staff, volunteers and even those individuals not directly involved in patient, resident, or client care.
While we await further instruction from the agencies, businesses should take proactive steps:
Review OSHA’s pandemic guidelines: While these are only guidelines, OSHA has tripled enforcement of the General Duty clause, which in broad strokes requires employers to furnish a workplace free from recognized hazards. At a minimum, businesses should review the pandemic guidelines and make reasoned decisions about which guidelines to adopt and which to forego.
Assess employee count: Though not confirmed, OSHA will likely use last year’s and this year’s EEO-1 report to assess coverage for the mandate. Whether a private sector business submits an EEO-1 report is an easy barometer for the agency. Accordingly, employers should review their EEO-1 compliance.
Assess vaccine status in the workforce: Businesses should know who is vaccinated and who is unvaccinated. Be sure to treat this information as confidential.
Evaluate federal contractor status: Businesses should evaluate whether they have federal contracts because the terms of those contracts may change quickly with respect to pandemic controls. This is a different inquiry than whether an entity is a federal contractor for affirmative action purposes. The new executive order appears to cover any entity with a federal contract, regardless of employee count or contract value.
Establish a record-keeping system: We do not yet know what records businesses will need to maintain or for how long. But we do know that covered entities will receive medical records either in the form of weekly tests or vaccination cards. Those records must be kept confidential. Businesses should establish robust confidentiality protocols for how these records are received and stored.
Establish a process for accommodation requests: Businesses should expect an increase in accommodation requests. Those requests should be handled with alacrity. Having an established system for accommodation requests, including protocols around the interactive process, will help ensure that every employee requesting an accommodation receives a timely, fair review.
Clarify policies on quarantining: Quarantines may become more common as more individuals test. Businesses should solidify — upfront — whether remote options are available for those quarantining, and if not, whether the proposed leave will be paid or unpaid. Keep in mind that some states and industries have mandatory paid leave programs that an entity must consider.
All businesses — whether expressly covered by the plan or not — should consult with qualified labor and employment counsel. These issues are complicated and will only become more complicated as nuance is introduced by OSHA, SFWTF and CMS.
Brian Bouchard, an attorney at Sheehan Phinney, is a litigator who focuses on labor and employment, land use and construction issues.