On September 9, President Biden announced a six-part COVID Action Plan. The key element in the plan is an Emergency Temporary Standard (ETS) rule through OSHA that would require all employers with 100 or more employees to show up to work each week with a negative COVID test if not vaccinated.
The rule will also require employers to provide paid time off to employees receiving the vaccine, and time to recover if an employee is not feeling well afterward.
These rules will impact both benefit and employment law compliance under OSHA, HIPAA, EEOC and GINA. New administrative responsibilities will be established for employers who wish to comply, and employers will need to be prepared with vendor solutions.
The rule would ultimately impact 100 million private sector workers who are not yet vaccinated. Employers who do not comply will most likely be subject to a fine from OSHA. The rule includes a mandate that the employees of contractors who do work with the federal government must be vaccinated.
Also included are employees of health care facilities that receive reimbursements from Medicare or Medicaid. Biden’s plan also includes steps to keep schools open and would require vaccinations for school staff. It also seeks to make testing more easily available and would offer loan support and PPP loan forgiveness for small businesses.
There are many unknowns, including how this would impact work environments with labor unions.
The COVID-19 Action Plan: Legal Repercussions Are Likely
Biden’s action plan will face legal challenges, with a likely argument that his directive is in violation of the separation of powers between the executive, judicial and legislative branches.
Challengers may also attest that the rule does not allow states to maintain their right to set their own health care policies. Potential lawsuits may also argue that it violates the 14th Amendment’s right to personal liberty. The ETS is not directed at individuals, however, but corporations, so it is not likely this will stand up to legal scrutiny.
There is also the question of whether this exceeds the powers of OSHA’s authority and its power to make rules under the Occupational Safety and Health and Act of 1970.
By including the option for testing, the rule allows for accommodation of those declining the vaccination for medical or religious reasons. There does not appear to be any religious belief or disability that would prevent testing, making the testing alternative more legally palatable.
The state of Arizona has already filed a lawsuit that challenges the rule, stating that it exceeds Biden’s executive authority and is in violation of the Constitution’s equal protection clause through discrimination.
Stated in the lawsuit is that the Department of Homeland Security merely offers the vaccination to detained people unlawfully entering the U.S. but does not require it. This is noted as discriminatory against U.S. citizens that would be under a mandate.
The Arizona district court may find that this lawsuit filed by the AG is too soon, given that the ETS has not been issued. It will likely take weeks to months for OSHA to announce its decision. In the meantime, opponents will likely be working on their legal strategies.
During this interim time, under the assumption that the ETS will move forward, there are plans that employers can make under these suggested initial guidelines.
- Ensure a vaccine policy allows for qualified exemptions/ADA compliance – communicate the policy clearly within the organization and apply the policy consistently to everyone, at all levels, within the organization.
- Provide a clear timeframe for completion and be flexible with PTO/sick time to allow employees to receive and recover from the vaccine.
- Consult with counsel to make sure you are implementing the procedures properly and seek their input into language.
- Follow the law closely as it is changing daily and update policies, procedures, and protocols accordingly.
- Establish how proof of vaccination is to be provided and how it will be kept confidential and secure.
- Start considering timing and implementation of possible booster mandate requirements/policies.
- Review/revise any overlapping operational and employment policies – Employee Handbook, Employment Contracts, Document Retention, etc.
- Be prepared to think about how to manage the need for employees to show proof of vaccination versus attestation.
- Note that CDC Quarantine Guidelines differ based on vaccinated status, which would impact contact tracing and quarantine periods in place.
If the ETS does not get implemented by OSHA, there remains the issue of vaccination mandates on an individual employer basis. Clear communications are essential and must include a written policy that is clearly spelled out. There must be an allowance for exceptions for religious beliefs and disabilities.
Since the Pfizer vaccine received full FDA approval, many employers have been taking a harder look at implementing mandatory vaccinations. Delta airlines, for example, has gone so far as mandating a $200 monthly surcharge on health insurance premiums against employees that remain unvaccinated. Other airlines are mandating vaccines in this hard-hit industry.
Without the backing of the OSHA rule, should it not come to fruition, employers will be forced to figure out what strategy is best with the involvement of human resources, benefits consultants, insurance brokers and legal counsel. This may include management of deductibles being re-imposed by health insurers for COVID, which had been waived for high hospital deductibles. &