What You Need to Know About OSHA’s COVID Vaccine Mandate

 

Recently, amid a growing number of COVID-19 cases, President Biden issued a six-pronged plan to fight the Coronavirus Pandemic. The plan covers everything from keeping schools open safely to providing better care to those infected with COVID-19, but the most hotly contested call to action revolves around a workplace COVID vaccine mandate.

 

On September 9, 2021, the Biden administration charged the Department of Labor’s Occupational Safety and Health Administration (OSHA) with developing an Emergency Temporary Standard (ETS) that would make all employers with 100 employees or more require their employees to get fully vaccinated or provide a negative COVID-19 test on a weekly basis. Also, as part of the ETS, employers would be required to provide paid time off for employees to get vaccinated and to recover if they experience symptoms after being vaccinated.

 

This bold new strategy comes after a lackluster effort to get all Americans vaccinated against COVID-19 causing a surge in cases this summer into fall. But, the announcement of a COVID vaccine mandate left many scrambling for more information and wondering if an Executive Order of this kind is even legal. Our workplace safety experts went in search of the answers to the most commonly asked questions surrounding the COVID vaccine mandate.

 

Can Employers Implement a COVID Vaccine Mandate?

In short – yes. In a technical assistance document issued by the Equal Employment Opportunity Commission in December 2020, there are no laws prohibiting employers from issuing a COVID vaccine mandate, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Examples of situations that would require reasonable accommodate include disability, sincerely held religious beliefs, practices or observances, and pregnancy.

 

Despite the recent introduction of an ETS, major companies like Google, McDonalds and Morgan Stanley have already implemented COVID vaccine mandates for their employees to curb the spread of COVID-19. The potential ETS would level the playing field for all employers to implement a requirement.

 

Can the President Require That Private Employers Implement a COVID Vaccine Mandate?

No. The President of the United States only has the power to issue executive orders governing the management of operations of the federal government. However, the President does have the authority to direct other branches of the government. In this case, President Biden directed OSHA to develop an ETS which did not require the issuance of an executive order.

 

This is similar to another directive President Biden gave earlier in the year for OSHA to determine if an ETS was needed to protect employees against COVID-19 in the workplace. Ultimately, OSHA decided that an ETS was needed for the healthcare industry and created a guidance for all other industries.

 

Can OSHA Require That Private Employers Implement a COVID Vaccine Mandate?

Yes. OSHA was created by Congress to protect the health and safety of employees. Under OSHA’s General Duty Clause, employers are required to provide a workplace that is “free from recognized hazards.” Due to the issuance of guidance of protecting employees from COVID-19 and the implementation of an ETS specifically around preventing the spread of COVID-19 in the healthcare center, we know that the coronavirus is considered to be a “recognized hazard.” Therefore, it is under OSHA’s per view to implement a COVID vaccine mandate for employers to keep their employees safe.

 

OSHA has flexed its muscle against employers who have not protected their employees from COVID-19 throughout the pandemic. As of September 2021, OSHA has issued $4,034,288 in penalties to employers for not taking precautions to reduce the spread of COVID-19 in the workplace. Most citations pertain to the General Duty Clause or Respiratory Protection standard. This COVID vaccine mandate ETS would give OSHA more teeth to help protect employees from COVID-19.

 

Has OSHA Ever Mandated a Vaccine Before?

No. The only other time that OSHA has dabbled with vaccinations is as part of the Bloodborne Pathogen standard. However, in this standard, OSHA only requires employers to offer the Hepatitis B vaccine to employees. The new ETS would force employers to require the vaccine or submitting to testing on a weekly basis.

 

Can Employers Incentivize Vaccination or Proof of Vaccination?

Yes. According to the EEOC, employers can offer an incentive for their employees to get vaccinated so long as the incentive is not coercive. Because the pre-vaccination screening questionnaire includes questions regarding disabilities, employees may feel coerced into providing private health information to their employer. If the vaccination is performed by a third party like a personal physician or retail pharmacy, there is no concern for a breach of confidentiality.

 

Many employers have already implemented this strategy. Kroger is issuing a $100 bonus to employees to get the vaccine. Petco is offering $75 to their employees. Other companies, like Delta Airlines, are taking a different approach. Over the summer the airline announced that they would be increasing monthly healthcare premiums by $200 for unvaccinated employees. The Affordable Care Act allows for employers to increase healthcare premiums for not employees who are not vaccinated through wellness and incentive programs, but insurers cannot increase costs for the unvaccinated.

 

If you are requiring employees to provide proof of vaccination from a third party, be sure to keep this information confidential pursuant to ADA.

 

What is the Timeline for the COVID Vaccine Mandate ETS?

It is important to note that at the time of this writing, an ETS has not been issued by OSHA yet. Due to the small size of the agency and the time it took to implement an ETS regarding COVID-19 requirements in the healthcare setting earlier this year, it is reasonable to expect the ETS to be issued in 6-8 weeks.

 

What About Companies with Less Than 100 Employees?

Smaller companies looking to implement a COVID vaccine mandate may feel like they don’t have as much legal backing as the longer companies referenced in the proposed ETS, but that isn’t true. While the ETS will not specifically mandate the requirement for companies with under 100 employees, it is still encouraged. Any company, regardless of size, has the right to implement a COVID vaccine mandate so long as they can provide reasonable accommodations per the ADA.

 

Is There a Mask Requirement Included in the Proposed ETS?

No. Currently there is no plan to include a mask requirement as part of the ETS. OSHA addresses mask wearing in their “Mitigating and Preventing the Spread of COVID-19 in the Workplace” guidance, in which they basically mimic the CDC’s currently guidelines. On July 27, 2021 the CDC released updated guidance for fully vaccinated individuals that encouraged the wearing of masks in indoor settings in areas of high or substantial spread regardless of vaccination status. Shortly after the new guidance was released, OSHA incorporated it into their document as well.

 

Be advised, however, that even if no federal mask mandate is made many localities have implemented mask mandates per the CDC recommendation. Also, many employers require their employees to wear masks while at the workplace even if there is not a current mask mandate. For example, Target requires their employees to wear a mask in all of their stores across the country even if there is no local mandate in place.

 

If any of this seems confusing to you, you are not alone! The rapidly changing landscape of the pandemic has forced governmental agencies to change policies and recommendations at break-neck speeds. What is true today may not be true tomorrow, especially with the growing concern over COVID-19 variants, like Delta. To learn more about how the impact the Delta variant has made, check out the recording of our Conney Safety Expert Webinar: “The Evolution of COVID-19 and Workplace Safety.”