We previously issued articles discussing the EEOC’s guidance on vaccine mandates, Recent EEOC Guidance on Mandatory Vaccinations: Can You be Fired for Refusing to Get Vaccinated? and Ten Takeaways from EEOC new Guidance on Employers Requiring COVID-19 Vaccines. Since those articles, and in the wake of the Delta variant, there have been significant updates including President Biden’s Path Out of the Pandemic Plan and U.S. Food and Drug Administration’s (FDA) approval of the Pfizer vaccine. However, many questions still remain.
On August 23, 2021, the FDA issued its first non-emergency approval of a COVID-19 vaccine. The FDA approved use of the Pfizer vaccine for those who are 16 years or older. Prior to this approval, all three of the vaccines, Pfizer, Moderna, and Johnson & Johnson, were classified as under emergency use authorization (EUA) status. Moderna and Johnson & Johnson continue to operate under EUA status. The FDA approval, along with the spike in COVID-19 cases due to the Delta variant, has resulted in many more employers implementing vaccine mandates, however, it is estimated that roughly 80 million vaccine-eligible Americans remain unvaccinated.
Partially to address the slowing vaccination rates, on September 9, 2021, President Biden announced his six-prong Path Out of the Pandemic Plan which set forth major steps for combatting the virus, most significantly in the realm of vaccination. The key points include:
- Requiring all employers with 100 or more employees to ensure that their employees are vaccinated or, for those who refuse vaccination, to require weekly COVID-19 testing;
- Requiring all federal employees and employees of federal contractors to be vaccinated;
- Requiring vaccination for health care workers at hospitals and medical facilities that accept Medicare and Medicaid;
- Calling on large entertainment venues to require proof of vaccination or testing upon entry;
- Requiring employers to provide paid time off for employees to get vaccinated.
The most significant prong, the vaccination mandate for employers with 100 or more employees, is to be carried out through another Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA’s previous ETS applied only to health care workers, however this ETS will apply to a much greater number of private employers who meet the 100-employee threshold. OSHA is expected to announce the relevant ETS in the next few weeks.
Many Unknowns Remain
The President’s plan still needs to be fleshed out, but in the meantime, many unknowns and questions about the vaccine mandate remain. Some of the most important, unanswered big picture questions include:
- Does the President have authority to make these vaccination mandates?
- Will OSHA’s ETS be enforceable?
- Who has control and jurisdiction over the employers? OSHA or each individual state?
- Does the vaccine mandate violate other laws, such as the Employee Retirement Income Security Act?
Even if the vaccine mandate and OSHA’s rules are enforceable, there are a lot more unknowns at this point:
- Will the large employer vaccine mandate offer a test-out option for any employee who chooses not to be vaccinated or will the test-out option only be available for certain employees, such as those who have a disability or a religious objection?
- What types of COVID-19 tests will be required?
- Who will pay for the weekly testing of employees who do not wish to receive the vaccine?
- How will the 100-employee threshold be counted? Does it include independent contractors?
- Will the definition of “fully vaccinated” change as boosters become available and recommended?
- How long will employees have to become fully vaccinated?
- What are the penalties for violations? A Biden Administration official stated that penalties for non-compliance could amount to $14,000, but questions remain such as:
- Is that fine per employee?
- Is there a cap on fines?
- Will OSHA subject employers to criminal sanctions?
Hopefully OSHA’s ETS will answer many of these questions and provide more clarity on these issues.
Federal Workers and Federal Contractor Mandates
Rules are already in place for federal workers and federal contractors and vaccine mandates. We will address this in another blog, but the gist is that most federal workers (even remote workers) have until November 22, 2021 to be fully vaccinated or face discipline up to and including termination.