Vaccine Mandates & Executive Orders

last updated – 9/10/2021

Given the newness of this executive order, there are many unanswered questions. But, we wanted to get the information we had out to you as soon as possible. We are closely monitoring these developments and will keep you apprised as new information is released.

Fisher & Philips has been kind enough to provide its own summary on the OSHA Emergency Temporary Standard (ETS) and the executive order on federal contractors linked and referenced throughout this webpage.

As part of his “Path out of the Pandemic” plan, President Biden issues executive orders mandating vaccines for federal employees and contractors and directs OSHA to issue Emergency Temporary Standard (ETS) for +100 EEs.

Following is a summary of what we know about the two executive orders:


Fisher & Phillips LLP info Article Summary:

9/10/2021

While the Biden administration did not set out a timeline or deadline for OSHA to issue the ETS, it is clear that the administration is taking an aggressive approach. It is likely that OSHA will issue the ETS relatively quickly – perhaps in the next several weeks, especially if it has been in the works behind the scenes for some time now. After it is issued, OSHA will likely strive for a timeline of 75 days before it starts enforcing the ETS to remain consistent with the Biden administration’s proposed deadline for federal workers to obtain the vaccine.   

Once issued, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. But in states where the federal government does not have jurisdiction over workplace safety (OSHA-state-plan states such as California, Tennessee, North Carolina, and Kentucky) these agencies will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days.

  • OSHA State Plan Map, OSHA
  • The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rule-making process involving a typical notice-and-comment period.  

    The details of what the ETS will include are scarce at this point, leaving many questions unanswered. The seven biggest unanswered questions for employers at this point:

    • Will remote employees be covered? Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home.
    • How will the 100-employee threshold be counted? The 100-employee threshold will be considered on a company-wide basis. Given other standards that mandate certain requirements based on employer size, the threshold likely will be on the total number of workers employed by the company. It is unclear whether a joint employer analysis will apply to the calculation of employees.
    • Will employers be required to collect proof of vaccination? Whether the ETS requires employers to collect proof of vaccination may have a huge impact on employers.  OSHA’s record retention regulations require that employers preserve and maintain employee medical records for the duration of employment plus 30 years. Therefore, if the ETS requires employers to collect proof of vaccination, you may be required to maintain that record for the duration of the employee’s employment plus 30 years.
    • What type of testing will be required? It is unclear whether the ETS will mandate a particular type of COVID-19 test (antigen, PCR, etc.). While the PCR test is more accurate, it takes longer to receive the results and is more expensive.
    • Who Pays for Testing? While the Plan proposed to improve access to COVID-19 tests – even suggesting that retailers will offer to sell those rapid tests at cost for the next three months – the question of who pays for testing remains unanswered. Generally, however, any testing protocols must comply with applicable wage and hour laws, which provide that time spent on receiving employer-required tests should almost always be treated as compensable. Indeed, the Department of Labor’s COVID-19 and the Fair Labor Standards Act Questions and Answers, published before the Plan’s announcement, provides that employers are required to pay employees for time spent waiting for and receiving medical attention (including COVID-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act (FLSA). This likely includes required testing occurring on employees’ days off if such testing is necessary to perform their jobs safely and effectively during the pandemic. Regarding the tests themselves, while insurance may cover the cost of tests, several states have laws predating COVID-19 requiring employers to pay for mandatory medical tests or reimburse employees for any such testing.
    • Will unionized employers be required to bargain over the decision of how to comply with the ETS? It remains to be seen whether and to what extent unionized employers would be compelled to bargain over the decision to effectuate compliance with the new mandate (or at least the discretionary aspects with respect to vaccines vs. weekly testing) under NLRB doctrine. At a minimum, you should prepare for a corollary obligation to bargain over the effects of that decision on demand. In the meantime, non-union employers should consider the practical implications of compliance from a labor relations perspective, as unions may attempt to leverage aspects of the new requirements for organizing purposes.
    • Will the ETS face legal challenges? As with any broad sweeping policy, any ETS that is adopted is likely to face legal challenges. Governors of many states have already indicated that they intend to challenge any ETS. It is possible that a court could even block enforcement of the emergency rule until the legal challenges are resolved. OSHA will have to prove that there is a “grave danger” to the workers of large employees in order for the ETS to withstand a legal challenge, which may be a difficult task.

    Here is a five-step action plan you can implement immediately to put yourself in the best position to comply with the expected ETS.

    1. Adopt Procedures for Determining Employees’ Vaccination Status
      You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need.The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.

      AdvanStaff HR will provide further guidance on this procedure.
    2. Determine if You Will Mandate the Vaccine or Allow Unvaccinated Employees to be Tested Weekly
      You will also need to determine whether you will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy. 
    3. Develop a Plan for Handling Accommodation Requests
      For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.For a detailed discussion of this topic, please refer to An Employer’s 3-Step Guide to Responding to COVID-19 Vaccine Religious Objections.
    4. Have a Plan for Tracking Test Results
      For employers who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, you will need to review the applicable federal, state, and local employment laws to determine if you must pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday.

      AdvanStaff HR will provide further guidance on this procedure.
    5. Prepare for OSHA Complaints and Inspections
      As a reminder, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, remain in effect. Therefore, in addition to the requirements of the new ETS, OSHA likely will ask for your COVID-19 response plan and training records if it receives a complaint or conducts an in inspection concerning the vaccine mandate ETS. If not already in place, develop a COVID-19 policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection. This effort could save your company from paying significant fines.

      AdvanStaff HR will provide further guidance on this procedure.

    President Biden has directed OSHA to develop a rule requiring employers with more than 100 employees to ensure that their workforce is either fully vaccinated or tested weekly. According to the White House:

    The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

    As of today (9/10/2021), this is all we know about the substance of the forthcoming ETS. However, there are a few items that we are considering as we think about the ramifications of the ETS.

    First, the ETS will likely be tied up in litigation almost immediately. The standard for issuing an ETS is very high: it requires a showing that employees are in grave danger and that the ETS is necessary to protect employees from such danger. Most ETSs are challenged in court and more than half have been stricken down as a result. Several governors have already stated that they would challenge the ETS when it is issued. Whether or not the plaintiffs are successful, you can be certain that there will be a multitude of lawsuits filed against its enforcement.

    Second, an ETS goes into effect upon publication in the Federal Register, without comment. As such, our advisors ability to provide input on the ETS is severely restricted. Given the unique nature of an ETS, we have almost no information at this time about when it will be published, when the requirements will take effect, or what it will entail. One bit of insight we were provided today by Solicitor of Labor Seema Nanda, on a conference call for the business community organized by the US Chamber of Commerce, is that she expects the ETS to be issued “in weeks” and that the ETS will likely contain exemptions for religious and health reasons. We will continue to monitor these developments closely and keep you posted.

    Third, further complicating things, 22 states regulate workplace safety and health through a state-run OSHA program. These “state plans” are required by OSHA to adopt an ETS that is at least as effective as the federal ETS. However, many of these state plans are in states governed by Republicans. Both the governors and the legislatures in these states are generally opposed to federal vaccine mandates, and so it is possible that these states will refuse to issue an ETS.

    Finally, it is likely that employers (and not the employees) will be responsible for the cost of COVID testing under the ETS. However, what is less clear is whether the cost of weekly testing will be covered by health plans or if the employer must cover the testing costs out of pocket.

    AdvanStaff HR advisors and counsel participated in a Department of Labor (DOL) webinar where several questions about the ETS were asked of senior OSHA counsel. Below is a summary of the points made during this webinar – many of which were compiled by Ulman Policy on behalf of the Coalition for Workplace Safety, a U.S. Chamber of Commerce business coalition:

    • OSHA plans to issue the ETS in “weeks.” This message has been consistent from all DOL officials.
    • OSHA will not provide stakeholders the opportunity to comment or provide input to the ETS prior to its release.
    • When the ETS is published in the Federal Register, it will become effective immediately in states where OSHA has direct jurisdiction.
    • The 22 states with state OSHA plans will have 30 days to implement their own version of the ETS.
    • Stakeholders will have an opportunity to comment on the ETS after it is published in the Federal Register. These comments will be used by DOL to help shape a proposed final rule that will replace the ETS.
    • OSHA intends to issue the final rule 6 months after the release of the ETS.

    With respect to the substance of the ETS:

    • The ETS will not supersede any existing DOT/transportation rules, as OSHA does not have primary safety and health jurisdiction over the transportation system.
    • OSHA and federal agencies will work to ensure the ETS is consistent with the vaccination mandates imposed on federal contractors.
    • The ETS testing/vaccination requirement will not extend to remote employees who are physically isolated from co-workers.
    • Employers will need to provide employees with PTO or allow employees to use existing PTO to obtain vaccinations and recover from vaccination side effects.
    • The 100-employee threshold for coverage applies to the company/employer, not just a single worksite.
    • The ETS will apply to the postal service/postal service employees (as they are considered private sector employees by OSHA).
    • The ETS will not impact employee collective bargaining.
    • The procedures for handling employees who refuse to vaccinate or test will not be addressed by the ETS.

    Questions OSHA did not answer, but said would be addressed in the ETS:

    • Who pays for testing?
    • What are the procedures for how employers will verify vaccinations and tests?
    • What level of vaccination is required under the ETS (i.e., one shot, two shots, booster) and associated waiting periods?

    A note of caution: until OSHA issues the ETS, any comments on what will or won’t be in it are subject to change. Anything written by OSHA will go through multiple layers of approval. If you believe you will be covered by the ETS, you should consult your AdvanStaff HR Specialist to make sure your company/clients are prepared for the issuance of the ETS.

    Finally, Fisher Phillips asked that we send: 5-Step Plan for Employers After President Biden Announces Workplace Vaccine Mandates. Also, here is a summary from Wiley. 

    This order mandates that all employees of federal contractors and subcontractors must be vaccinated. It delegates the authority to set the specific requirements of this mandate to the Federal Acquisition Regulatory Council and the various government agencies by October 15. We will likely know more at that time.


    COVID-19 Vaccine Surcharges, Mandates and Incentives: What Employers Should Know

    COVID-19 vaccinations are a highly contentious topic in America. Many U.S. adults still haven’t gotten the shot despite the Food and Drug Administration’s recent (FDA) full approval of the Pfizer-BioNTech vaccine.

    This reluctance is seen as a problem by health experts, who contest that vaccination is the most effective way to control the widespread coronavirus Delta variant. It’s also a problem for employers wishing to maintain uninterrupted operations and keep employees healthy.

    So, if an employer wants a vaccinated workforce but is dealing with vaccine skepticism, what are their options? This article explores this complicated situation and discusses the multitude of choices facing employers.

    Requiring a COVID-19 vaccine as a condition of employment is a controversial subject. To some, vaccine mandates may seem draconian; to others, they may seem like the only way to return workplace operations to a pre-COVID-19 level.

    Even with the best intentions, vaccine mandates can potentially reflect poorly on an organization. One major concern is that it could alienate workers or prospective employees. If someone is opposed to the COVID-19 vaccine, for whatever reason, they will no doubt try to avoid working for a business that mandates it.

    In a tight labor market, the inability to find talent could sink a company faster than having workers fall ill due to COVID-19. Yet, employee wellness is still of critical concern to employers. How can organizations protect workers while still respecting employees’ rights to make their own health choices? For many, the answer has been to encourage—rather than to mandate—vaccines through various methods.

    While many employers have avoided mandating COVID-19 vaccines, some have taken the opposite approach. Notably, United Airlines, Goldman Sachs, Google, Walmart and even the federal government, among others, have introduced vaccine mandates as conditions of employment for at least some of their workers.

    Additionally, some hospital groups have been firing workers who won’t comply with their requirements, demonstrating how important some businesses consider COVID-19 vaccination.
    While these policy decisions coming from large organizations are consequential, they are still outliers at the moment. However, that will likely change by the end of 2021. According to a recent survey from Willis Towers Watson, over half (52%) of employers said they will be implementing some form of vaccine mandate for at least some of their employees. Currently, many organizations have

    simply encouraged vaccination while considering their best routes forward, including the use of incentives or penalties.

    Incentives in Action

    Incentives are nothing new to employers; these perks can include gift cards, extra time off, raffle prizes or cash. Some workplaces are using incentives to encourage vaccinations among their employees—get a shot, receive a prize.

    The use of incentives indicates how far an organization is willing to go to get employees vaccinated while still falling short of a mandate. Walmart is currently offering $150 to their workers who get the shot; Cigna is offering $200. But they’re not the only ones paying up. Kroger, McDonald’s, Aldi, Target and other large retailers are providing incentives in exchange for COVID-19 vaccinations. Some of these companies are offering cash, paid time off or funds to pay for transportation to a vaccination site.

    Even state governments are trying to incentivize their citizens into getting a COVID-19 vaccine. Many states have introduced lotteries where anyone who gets a shot is entered to win thousands of dollars, tickets to sporting events, vacations or other prizes.

    Penalties in Action

    Incentives aren’t an employer’s only option when it comes to encouraging vaccination. Some have chosen to use the stick instead of the carrot, issuing penalties to employees who refuse to get vaccinated.

    Most recently, Delta Air Lines announced steep penalties for unvaccinated workers. Existing employees aren’t required to be vaccinated as a condition of employment (new ones are), but they face significant disadvantages for refusing the shot. Specifically, unvaccinated employees must pay a $200 monthly surcharge for health benefits and undergo weekly COVID-19 testing. Additionally, the company will not provide pay protection to unvaccinated workers who contract COVID-19.

    Delta Air Lines’ CEO said this surcharge will help offset the $50,000 the company spends, on average, for COVID-19-related hospitalizations. And this line of thinking seems to be shared among other employers. According to Mercer, more and more businesses are considering using surcharges to get employees vaccinated.

    At this point, it may seem like there are three straightforward options available to employers who want vaccinated workers:

    1. Mandate vaccination
    2. Incentivize vaccination
    3. Penalize unvaccinated workers

    Yet, as simple as these options may seem, each comes with unique legal implications.

    Vaccine Mandates

    Vaccine mandates aren’t anything new in the United States. For instance, children must be inoculated before they can attend school. It’s generally agreed upon that employers are legally allowed to require vaccinations among employees, especially when employees must work closely together or alongside a high-risk population—still, state laws may differ on the subject, so employers will want to check with local legal counsel.

    Regarding COVID-19 vaccinations, a mandatory vaccination policy must meet the Americans with Disabilities Act (ADA) standard of “job-related and consistent with business necessity.” Further, Title VII of the Civil Rights Act (Title VII) and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19 unless providing an accommodation would pose an undue hardship on the employer’s business operation. The analysis for undue hardship will differ depending on whether the accommodation is for a disability or for religion. An employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should contemplate notifying all employees that the employer will consider requests for reasonable accommodations based on disability or religion on an individualized basis.

    Vaccine Incentives

    Employers are generally allowed to offer incentives, such as cash payments, gift cards or other rewards, for getting vaccinated. Under Equal Employment Opportunity Commission (EEOC) guidance, employers can offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received on their own from a third-party provider. However, if the employer or its agent administers the vaccination, the employer can only offer an incentive that is not so substantial as to be coercive. This is because vaccinations require employees to answer pre-vaccination disability-related screening questions, so a very large incentive could make employees feel pressured to disclose protected medical information, therefore running afoul of the ADA.

    Unfortunately, the EEOC has not clarified how large of an incentive would constitute coercion. Employers considering vaccination incentives will want to keep an eye out for emerging government guidance.

    Vaccine Penalties/Surcharges

    Levying penalties, specifically premium surcharges, against unvaccinated workers is a complex and rapidly evolving issue. Such a penalty would likely be implemented through a wellness program subject to unique rules under the Health Insurance Portability and Accountability Act (HIPAA), the Affordable Care Act (ACA) and more. As such, employers must be careful to comply with all applicable laws. At the time of this writing, the federal government has not issued specific guidance on surcharges issued to unvaccinated workers. That alone is a major sign that employers should proceed cautiously.

    Employers should consider a wide range of factors when determining whether surcharges are appropriate for their employees, including but not limited to:

    • ADA and HIPAA nondiscrimination rules
    • ACA plan affordability thresholds, as applicable
    • Offering reasonable alternatives to those who cannot be vaccinated for reasons protected by law

    Additionally, penalties beyond surcharges, such as withholding pay protection, may be subject to workplace laws. This is a highly complex and developing topic. Employers are encouraged to consult with legal counsel before moving forward with penalties or surcharges related to COVID-19 vaccinations.

    Health experts agree that getting workers vaccinated is a worthwhile effort. Ultimately, higher vaccination rates among employees can lead to many benefits. Healthier employees mean lower health care costs and fewer hospitalizations, which can be extremely expensive, as Delta Air Lines’ CEO pointed out. More vaccinated workers also mean a smaller chance of interrupted operations due to a COVID-19 outbreak.

    Employers looking to encourage vaccination (without direct incentives) can consider the following strategies:

    • Educate employees about the importance of vaccines through multichannel communications (e.g., posters, videos, articles and stickers).
    • Cover the costs of vaccination for employees, including travel expenses and time away from work.
    • Appeal directly to employees, using plain language and real-world stories of how COVID-19 vaccines can help communities.
    • Focus efforts on vaccine skeptics to help win them over.
    • Solicit and answer employee questions regarding COVID-19 vaccines, their efficacy and their importance.
    • Arm managers with resources to help them address employees who come to them with vaccine questions.
    • Encourage C-suite leaders to share their own stories about why they got vaccinated to help inspire employees to do so.

    While surcharges are another option, they should be considered with caution—at the very least until government agencies issue further guidance. With that in mind, employers may run into fewer legal complications by sticking to incentives rather than penalties. Of course, as with any incentive program, employers must be careful to comply with EEOC regulations.

    Getting employees vaccinated is a top priority for many organizations. In fact, it’s so important that companies are charging unvaccinated employees fees in some cases and firing them in others.

    However, any vaccine-related workplace policy comes with inherent legal risks. Employers considering any vaccine policy—whether it’s related to incentives, penalties or mandates—should first consult with legal counsel.

    Reach out to AdvanStaff HR for more workplace resources, including employee communications to help encourage vaccination.