Vaccination and Testing Mandates Raise Questions

President Joe Biden’s new “COVID-19 Action Plan,” intended to reduce the number of unvaccinated people, sets some clear mandates but also raises questions that may not be answered until the plan is implemented through executive branch emergency action, rulemaking and agency guidance.

In addition to employee vaccination mandates for federal workers and federal contractors, the COVID-19 action plan also requires vaccination of workers in most health care settings as a condition of Medicare and Medicaid participation. There is no weekly testing option likely to be available under these mandates, which will be implemented through rulemaking by the Centers for Medicare and Medicaid Services and will likely be an extension of the requirement for vaccination of workers at nursing home facilities that was announced in August.

Large Employer Mandates
The large employer mandate will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated workers to produce a negative test result on at least a weekly basis before coming to work. It will be implemented through an Emergency Temporary Standard (ETS) rule of the Occupational Safety and Health Administration (OSHA). Large employers will also be required to provide paid time-off for employees to get vaccinated or recover from post-vaccination symptoms.

While the White House announcement of the large employer mandate did not specifically mention religious or medical exemptions to vaccination, existing law would require that employers provide such exemptions as accommodations under the Americans with Disabilities Act (ADA) for medical exemptions or under Title VII for religious exemptions. It may be that the OSHA ETS will also mandate additional safety requirements for workers that could form the basis of an alternative to vaccination when combined with weekly testing. Employers should begin preparing now for how they will handle religious or medical exemption requests by developing vaccination policies, vaccination exemption policies and plans of how to communicate all this information clearly to employees.

One important, yet unanswered, question for large employers is how OSHA will count employees for each employer to reach a 100-employee threshold. OSHA has been moving away from a worksite test to a common control test in its regulations, so it is likely OSHA will count all of an employer’s workers across all sites (and even across affiliate businesses) together to reach the 100-employee threshold.

The ETS may require employers to develop a comprehensive written plan for COVID safety that includes vaccination requirements and education, alternative testing guidelines, masking, physical distancing, filtration and ventilation standards. OSHA’s large employer ETS is also likely to include requirements related to customers and third parties.

Testing Questions
Much remains unanswered about the alternative weekly testing option under the large employer mandate. Will employers be required to provide paid time off for weekly COVID tests? Who will bear the burden of testing costs? Will employer costs be eligible for tax credits?

It is not known yet what testing standards will be acceptable to meet the weekly testing criteria. Will a PCR test be
required? What will the timing requirements be? How about less sensitive antigen tests, or even home testing by the employee? What documentation will be required to show a negative result?

The ETS is almost certain to include documentation requirements for employers related to employee testing and vaccinations. This means that employers will be required to ask employees to provide their test results, which in turn requires employers to carefully analyze their processes and procedures to maintain confidentiality under the ADA and HIPAA.

It is likely the ETS will not apply to employees who work only from home, as OSHA only has jurisdiction over worksites where an employer can control, correct or create a workplace hazard. If an employer requires, or even permits, a remote worker to come to the office or other worksite, though, those employees will likely be subject to the ETS requirements.

OSHA has indicated that it will issue the ETS by mid-November, and it will be effective until a permanent rule is issued through the rulemaking process. The mandate is also sure to be challenged in court.

Ken Bartholomew is a shareholder at Rath, Young and Pignatelli, P.C. in Concord, chair of the firm’s health care law practice group and a member of the labor and employment and litigation practice groups. He can be reached at 603-410-4321 or kcb@rathlaw.com.