Many employers were left with more questions than answers after President Biden discussed the private employer requirement of his COVID-19 Action Plan, the “Path out of the Pandemic Plan,” on September 9, 2021. Chris Gantt-Sorenson and Perry MacLennan were guests on this week’s Survive HR Podcast to discuss the President’s COVID-19 Action Plan and answer these pressing questions. Chris and Perry discussed the Plan, its impact on employers, what employers should expect, and the Plan’s legality as it pertains to private employers.

Are private employers subject to a mandate now as a result of the President’s COVID-19 Action Plan?

Employers are not subject to a mandate at this time as a result of the President’s announcement on Thursday (September 9, 2021) as there is no rule or standard in place at this time applicable to the President’s COVID-19 Action Plan that applies to private employers unless they are federal contractors.

Can the President mandate that employers require their employees to get the COVID-19 vaccination?

President Biden’s Plan is multifaceted and there is confusion about what was mandated by the President and what was not. President Biden’s two mandates pertain only to federal employees and federal contractors. President Biden referenced an anticipated rule from the Occupational Safety and Hazard Administration (OSHA) requiring employers who employ 100 or more employees to require their employees to provide proof of COVID-19 vaccination or a weekly negative test. The President cannot directly mandate that private employers must vaccinate their employees or require their employees to provide a negative COVID-19 test weekly in lieu of vaccination. However, the President can direct a federal agency to issue a standard or regulation that requires an employer with 100 or more employees to implement a policy requiring its employees to provide proof of COVID-19 vaccination or proof weekly of a negative COVID-19 test.

Conversely, the President does have direct authority to require that federal employees be vaccinated against COVID-19 or provide weekly proof of a negative COVID-19 test, or that federal contractors receiving compensation from the federal government be required to show proof of compliance of such a policy to be eligible to perform and receive payment for federal contractor work.

Does OSHA have the authority to issue a mandate that private employers must either ensure their employees are vaccinated against COVID-19 or require those unvaccinated to produce a negative test weekly?

OSHA was created by an act of Congress that enabled OSHA to issue rules, known as standards, to employers for keeping employees and workplaces safe. As long as the standard is within the authority Congress granted OSHA through the enabling statute, OSHA has the authority to promulgate the standard. The standard has the force of a regulation in that OSHA can then issue citations against employers for violating the standard. Just as OSHA issued an Emergency Temporary Standard (ETS) applicable to employers of health care and health care support employees and first responders on June 10, 2021, it can do the same in this instance.

When should employers expect an ETS from OSHA?

To be effective, it is reasonable to think OSHA would issue the ETS quickly and some sources advise the ETS was already being drafted. OSHA also has the ability to issue an ETS forgoing the lengthier Notice of Proposed Rulemaking process, so it could be at any time now. However, OSHA issued the June 10 ETS standard approximately six months after President Biden directed OSHA to promulgate stronger rules to protect employees.

Will employers have to pay for vaccinations or the COVID-19 tests?

 Generally, an employer who mandates that an employee must have the COVID-19 vaccination to perform their duties would have to cover the costs of the vaccination as well as time away from work to take the vaccination (in the event of non-exempt employees). Here, where a rule issued by a federal agency requires an employer to either verify an employee has had a COVID-19 vaccination or require them to provide proof of a negative test weekly, it would seem the cost should not be one that the employer must bear.  In its June 10 ETS, OSHA did include a requirement that employers subject to that ETS pay weekly wages to any employees unable to report to work due to contracting COVID-19 regardless of how it was contracted and, therefore, OSHA could presumably also require employers to bear some cost associated with any ETS it issues pursuant to President Biden’s COVID-19 Action Plan.

What should employers do now?

Employers employing 100 or more employees should anticipate that an ETS requiring them to verify every employee is either vaccinated or, if unvaccinated, providing weekly proof of a negative COVID-19 test. The employer should implement processes for receiving proof of vaccination or negative tests in a manner that is compliant with the confidentiality rules of the Americans with Disabilities Act (ADA).

What should employers contemplating implementing a mandatory COVID-19 vaccination requirement consider?

There are many considerations an employer must make before mandating vaccinations, including:

  • exceptions under the ADA and Title VII for medical or religious accommodations,
  • ADA confidentiality requirements,
  • whether the employer will have a third-party administer vaccinations or if the employer will offer the vaccinations in-house,
  • implicating HIPAA and other privacy concerns and protections, and
  • wage and hour issues associated with any such policy.

Click here to listen to the entire conversation on the Survive HR podcast.

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If you have questions about this topic or other employment law matters, please contact Chris, Perry, or the HSB Employment Law practice team.