On September 9, 2021, the White House announced three actions to increase COVID-19 vaccinations of private sector employees throughout the country. These extraordinary actions, which are aimed at curbing the surging Delta variant and preventing future waves of infection, will almost certainly face legal challenges.
First, the White House announced that the Occupational Safety and Health Administration (OSHA) is developing a regulation that will require all employers with 100 or more employees to ensure that all of their employees either be fully vaccinated or comply with a requirement to produce a negative COVID-19 test result on at least a weekly basis before coming to work. The White House estimates that this new regulation will apply to over 80 million workers.
The new regulation is to be classified as an “emergency temporary standard.” To qualify as an emergency temporary standard, the Secretary of Labor must conclude that employees are exposed to “grave danger,” which the emergency temporary standard is necessary to prevent. Unlike most other regulations, an emergency temporary standard becomes effective immediately upon publication in the Federal Register. The White House’s announcement did not estimate when the new regulation would be issued, but because it needs to be based on the finding of a grave danger to employees, it can be expected that the regulation will be issued soon.
Noncompliant companies could face substantial penalties. The maximum penalty under OSHA for a “serious” violation is currently $13,653, while a the maximum penalty for a “willful or repeated” violation is $136,532.
Second, the White House announced that OSHA is also developing a regulation that will require employers with more than 100 employees to provide paid time off for both the time necessary to become vaccinated and for time to recover from adverse effects of being vaccinated. This regulation will also be issued as an emergency temporary standard, and therefore will also likely be issued in the near future.
Third, President Biden issued an executive order requiring that future contracts with federal contractors and subcontractors include a clause mandating compliance with upcoming COVID-19 guidance. According to the White House announcement accompanying the issuance of the new executive order, the upcoming guidance will require that employees of federal contractors and subcontractors be vaccinated against COVID-19, subject to legally required exceptions. The requirement to include a contract clause mandating compliance with the upcoming COVID-19 guidance will apply to covered contracts entered into, renewed or extended on or after October 15, 2021, subject to certain exceptions. The executive order concerning federal contractors and subcontractors was issued in conjunction with an executive order mandating that all federal employees be vaccinated against COVID-19, except when legally required exceptions apply.
While the new OSHA regulations can be expected to be issued soon, OSHA may well grapple with some potentially challenging issues in developing the regulations. For example, there are currently unresolved issues concerning (1) whether employers need to pay for COVID-19 tests of employees who decline to be vaccinated and opt for weekly testing and (2) whether employers need to pay for the time spent in testing and related travel by such employees who are nonexempt. Such issues are not generally within the scope of OSHA’s reach, but OSHA may find it necessary to address them. In addition, OSHA will need to determine whether the same vaccination or testing requirements should apply to fully remote workers. It is not clear that OSHA could find that it is necessary to establish such mandates for fully remote workers to protect them from “grave danger.”
None of the new initiatives are expected to affect the guidance issued by the U.S. Equal Employment Opportunity Commission on May 28, 2021 with respect to exemptions from vaccination requirements for employees with certain disabilities and sincerely held religious beliefs. Assessing requests for these exemptions can be challenging for employers, as discussed in a Goodwin Client Alert published in June 2021.
The lawyers in Goodwin’s Employment Practice have assisted employer clients with myriad issues arising from COVID-19 in general and vaccine mandates in particular. We will be closely monitoring developments in these areas, including the upcoming OSHA regulations and guidance under the September 9, 2021 executive order concerning federal contractors.
Jennifer Merrigan FayPartner
Robert M. HalePartnerChair, Employment