Local, State, and Federal Employer Mandates: COVID-19
Current Regulations
Contractors may be left wondering about their rights as employers in light of federal, state, and local vaccination mandates. To ensure compliance and avoid the imposition of fines, employers should familiarize themselves with both President Biden’s “Path Out of the Pandemic” Plan and OSHA’s Emergency Temporary Standard (“ETS”) published in the Federal Register on November 5, 2021. Ongoing litigation regarding the constitutionality of the President Biden’s plan and the authority of OSHA to implement such a mandate causes the information in this Article to be subject to change. It is therefore important to look to current federal, state, and local government guidance for updates to vaccination mandates that may affect your business. Take a look below to get a glimpse into the requirements for President Biden’s plan as well as OSHA’s ETS.
The “Path Out of the Pandemic” plan requires all employers with 100 or more employees to ensure their workers are fully vaccinated or tested on a weekly basis. This federal plan further requires that all federal workers and contractors that do work with/for the federal government are fully vaccinated.
OSHA’s Emergency Temporary Standard mandates that private employers with at least 100 employees require unvaccinated workers to wear masks starting on January 10, 2022. Covered employers must also prepare a written COVID-19 vaccine-or-testing policy with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Further, covered employers must ask about the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain a list of employees and their vaccination statuses. Please note that the Supreme Court has stayed the implementation of OSHA’s ETS as of January 13, 2022. It is, therefore, not currently in effect.
Regulation Status Over the Past Year
The world as we knew it changed when the SARS-CoV-2 virus (hereinafter referred to as “COVID-19”) surfaced in Wuhan China in 2019 and quickly spread around the globe. The first laboratory-confirmed case in the United States occurred on January 20, 2020.[1] Not long after, the world went into lockdown-mode, causing fluctuations in various global economies.
As the United States government attempted to navigate through the pandemic, vaccine researchers and developers worked quickly to develop some form of protection against the novel virus. The Food and Drug Administration (FDA) issued an Emergency Use Authorization (EAU) for the Pfizer BioNTech COVID-19 vaccine on December 11, 2020, and the Moderna COVID-19 vaccine on December 18, 2020. Now, both vaccines have FDA approval, and the FDA recommends recipients of the first two-doses receive a third “booster” shot six months after receiving the second dose.[2] As the COVID-19 virus continues to mutate into new strains (i.e., Delta variant, Omicron variant) that are more contagious and dangerous than the original virus, federal and local governments have implemented vaccination mandates. Now more than ever, employers’ rights are changing and new developments in these vaccine mandates are making compliance difficult.
A vaccine mandate is “a requirement that says you must be vaccinated to do certain things like working, [and] traveling . . . But the government or other authorities can’t physically force you to get vaccinated. A vaccine mandate means that if you don’t, businesses, schools, and others can legally stop you from entering the building or using their services if they choose to.”[3] There is a federal vaccine mandate as well as a state vaccine mandate.
President Joe Biden has implemented a COVID-19 action plan called “Path Out of the Pandemic.”[4] The federal vaccine mandate requires all federal employees and contractors that do business with the federal government to be fully vaccinated by November 22, 2021.[5] One is considered fully vaccinated two weeks after they received the requisite number of doses of a vaccine approved or authorized by the FDA.[6] This federal mandate may even apply to federal employees who do not report to the worksite (i.e., work remotely or conduct telework).[7] The most controversial aspect of the plan, however, is arguably the requirement for employers with 100+ employees to ensure their workers are vaccinated or tested weekly.
The Department of Labor’s Occupational Safety and Health Administration (OSHA) has assisted the implementation of the plan by developing an Emergency Temporary Standard (ETS). The OSHA ETS covers private employers with more than 100 employees, but does not apply to workplaces of employers who have fewer than 100 employees in total.[8] The ETS requires employers to (1) develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace; (2) determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status; (3) support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose; (4) ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if employee is in the workplace at least once a week) or within 7 days before returning to work (if employee is away from the workplace for a week or longer); and (5) ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.[9] Not all employees must meet the requirements of the ETS, however, even if the employer is covered by the ETS. Specifically, the ETS requirements will not apply to (1) employees who do not report to a workplace where other individuals are present; (2) employees while working from home; and (3) employees who work exclusively outdoors.[10] Ultimately, the goal of the ETS is to minimize the risk of COVID-19 transmission in the workplace.[11]
The ETS is effective immediately upon publication in Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates: 30 days after publication for all requirements other than testing for employees who have not completed their entire primary vaccination dose(s); and 60 days after publication for testing for employees who have not received all doses required for a primary vaccination.[12] The ETS on Vaccination and Testing was published in the Federal Register on November 5, 2021, therefore employers had until January 4, 2022 to comply.
However, litigation has delayed the implementation of and compliance with the ETS. On November 6, 2021, the Fifth Circuit Court of Appeals implemented a stay on OSHA’s ETS pending judicial review, raising several concerns about the authority of OSHA to implement such a plan.[13] Because “multiple petitions challenging the ETS had been filed in several circuits, the judicial panel on multidistrict litigation conducted a lottery to select one court of appeals to hear the petitions. On November 16, 2021, the Sixth Circuit was chosen in that lottery and all petitions were ultimately consolidated there. Shortly thereafter, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the ETS.”[14] On December 17, 2021, the Sixth Circuit Court of Appeals, in a 2-1 decision, dissolved the stay previously placed on OSHA’s Emergency Temporary Standard (“ETS”) by the Fifth Circuit.[15]
Once the stay was lifted, many employers are left wondering about the impact the timing of the ETS’s vaccination and testing and requirements, which were originally set to go into effect December 6, 2021, and January 4, 2022. In response to the Sixth Circuit’s lift of the stay, OSHA announced that it would not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.[16]
In response to the lift of the stay, several petitioners immediately filed an emergency application with the U.S. Supreme Court to stay the Sixth Circuit’s order dissolving the stay, seeking to reinstate the stay until the case can be heard by the highest court.[17] In response, the Supreme Court stayed the implementation of OSHA’s ETS on January 13, 2022, stating:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
Although the Supreme Court has implemented a stay on OSHA’s ETS as of January 13, 2022, it’s very possible the landscape surrounding the ETS could change yet again, creating even more uncertainty for employers.
Aside from Federal mandates, State orders have also impacted employers. For example, the State of Colorado has issued a statewide mask order that requires unvaccinated people to wear masks in certain public indoor spaces.[18] Additionally, Colorado now requires that all “State Contractors and State Contractor Workers, including individuals who have been infected with and recovered from COVID-19, shall have received their first dose in a two dose COVID-19 series no later than September 30, 2021 and shall have received their second dose in a two dose COVID-19 series by October 31, 2021.”[19] Further, the Order requires that State Contractors and State Contractor Workers who enter a State Facility to provide services to a client, resident, patient residing in a State Facility who have a medical or religious exemption from vaccination approved by their employer, and all other State Contractors without proof of vaccination including those who have a medical or religious exemption from vaccination approved by their employer who enter a State Facility, must participate in twice weekly COVID-19 testing and, if they test positive, shall not enter a State Facility and shall comply with isolation guidance.[20] In sum, under this Order, State Contractors must certify that each of the identified State Contractor Workers who are not Fully Vaccinated are participating in twice weekly COVID-19 testing.[21]
Turning to local aspirational efforts, the state of Colorado has launched its “Power the Comeback” initiative. The state of Colorado is asking businesses to help Power the Comeback by supporting employees who want to be vaccinated and promoting policies for COVID-safe workplaces.[22] Colorado is asking businesses to assist in the initiative by (1) taking the Power The Comeback/COVID Safe Business Pledge to become an official Power the Comeback Business Partner and access the official business partner tool kit; (2) scheduling a vaccine event for employees; (3) scheduling a vaccine event/promotion for your customers/patrons, (4) and sharing a Power the Comeback testimonial video or awareness advertisement.[23]
In conclusion, each employer will face unique obstacles in trying to manage COVID-19 cases among its employees. It is, therefore, essential for employers to know which regulations that it is subject to. Employers may be subject to several different federal, state, or local regulations that may involve vaccination mandates, weekly testing of employees, or mask requirements. It is important to stay up to date on new developments with applicable orders or regulations to ensure compliance and to minimize the spread of COVID-19 in the workplace.
For further discussion on the Vaccine Mandates, please access this link to see our own founding partner, January Allen, present on this topic to the American Council of Engineering Companies on November 17, 2021.
Disclosure: This article was drafted on January 25th, 2022, and the landscape for vaccination mandates is constantly evolving. It is therefore important to look to current federal, state, and local government guidance for updates to vaccination mandates that may affect your business.
[1] COVID-19 Timeline, Ctr. for Disease Control and Prevention, https://www.cdc.gov/museum/timeline/covid19.html#:~:text=January%2020%2C%202020%20CDC,18%20in%20Washington%20state.
[2] Comirnaty and Pfizer-BioNTech COVID-19 Vaccine, Food and Drug Admin, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/comirnaty-and-pfizer-biontech-covid-19-vaccine
[3] Vaccine Mandates: What to Know, WebMD, https://www.webmd.com/vaccines/covid-19-vaccine/vaccine-mandates#1-2
[4] Path Out of the Pandemic: President Biden’s COVID-19 Action Plan, The White House, https://www.whitehouse.gov/covidplan/
[5] Ibid.
[6] Ibid.
[7] Vaccinations, Safer Federal Workforce, https://www.saferfederalworkforce.gov/faq/vaccinations/
[8] Emergency Temporary Standard Fact Sheet: COVID-19 Vaccination and Testing ETS, Occupational Safety and Health Admin., https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf
[9] Ibid.
[10] Ibid.
[11] Emergency Temporary Standard: Summary of COVID-19 Vaccination and Testing ETS, Occupational Safety and Health Admin., https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf
[12] Ibid.
[13] Petition for Review of Occupational Safety and Health Administration Emergency Temporary Standard No. 21-60845, The Fifth Circuit Court of Appeals (Nov. 12, 2021), https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf
[14] Gigante, et al., Sixth Circuit Penal Dissolved Stay of OSHA Vaccine/Testing Mandate, The Nat’l Law Review, https://www.natlawreview.com/article/sixth-circuit-panel-dissolves-stay-osha-vaccinetesting-mandate
[15] In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. Dec. 17, 2021).
[16] Emergency Temporary Standard: COVID-19 Vaccination and Testing ETS Litigation Update, United States Dep’t of Labor Occupational Safety and Health Admin., https://www.osha.gov/coronavirus/ets2
[17] Gigante, et al., supra note 14.
[18] Public Health Orders, Colorado Dept. of Public Health & Env’t; Colorado State Emergency Operations Ctr.,
[19] Tenth Amended Public Health Order 20-38 Limited COVID-19 Restrictions (Nov. 30, 2021), Colorado Dep’t of Public Health & Env’t, https://drive.google.com/file/d/1ZXHwIn976joblTQGjXYbv_KvnXGSHDhO/view
[20] Ibid. at 7.
[21] Ibid.
[22] Power the Comeback Resources, Colorado Dept. of Public Health & Env’t; Colorado State Emergency Operations Ctr., https://covid19.colorado.gov/bizpledgetoolkit
[23] Ibid.