In July, White House Press Secretary Jen Psaki stated in response to a question regarding a federal vaccine mandate:
“Can we mandate vaccines across the country? No. That is not a rule that the federal government, I think, even has the power to make.”
Life comes at you fast. Less than three months later, President Joseph Biden announced his administration’s “Path Out of the Pandemic” – a multipronged strategy to, among other things, mandate the Covid-19 vaccine for a majority of the American workforce. Indeed, the administration’s directive will bring new mandatory vaccination and testing requirements to workplaces of nearly 100 million Americans.
Frankly, the details of the administration’s plan remain unclear. The administration directed the Department of Labor’s Occupational Safety and Health Administration to develop a formal rule addressing mandatory Covid-19 testing and vaccinations in the workplace. Such a rule would ordinarily take significant time to develop and implement. However, OSHA will utilize an “Emergency Temporary Standard” to both immediately implement and expedite the lengthy rulemaking process for these new regulations. OSHA will now develop a rule requiring all employers with 100 or employees to either: (1) mandate their workforce receive the Covid-19 vaccine, or (2) require nonvaccinated employees to produce a negative Covid-19 test on a weekly basis. Covered employers who ignore either requirement could face OSHA audits and monetary penalties.
Furthermore, the administration also directed OSHA to require covered employers to provide paid time off for subject employees for: (1) the time off to receive the vaccine, and (2) the time-off for any post-vaccination illness or side effects.
However, the president’s announcements brings more questions than answers. It is presently unclear whether individual employers will be responsible for making Covid-19 tests and vaccines available to employees. Furthermore, OSHA has not yet announced how it will count this 100 employee threshold – whether such a figure is based on a companywide number or individual facilities/locations. It also remains unclear whether remote employees will be subject to this requirement – although given previous guidance from OSHA, it is likely that remote workers will not be subject to either the vaccine or testing mandate.
Notably, OSHA has not yet addressed whether employers will be required to preserve and maintain employee vaccination and testing records – a requirement that would give rise to a litany of OSHA record retention regulations.
OSHA is still in the rule drafting stage and has not yet implemented these new regulations. However, covered employers should anticipate a rollout within the coming weeks. OSHA’s Emergency Temporary Standard is effective for six months. After that time, the temporary standard must be replaced by a permanent OSHA regulation, which must undergo a formal rulemaking process involving a typical notice-and-comment period.
Also addressed in Biden’s “Path Out of the Pandemic” were: (1) a vaccine mandate for all federal contractors and employees (although, ostensibly, the United States Postal Service will not be subject to this requirement), (2) a vaccine mandate for healthcare facilities that receive Medicare or Medicaid reimbursement, and (3) a call for entertainment venues – such as stadiums and arenas – to require either proof of vaccination or negative tests.
The administration’s vaccine mandate will surely be met with legal challenges. In response to the administration’s announcement, Texas Governor Greg Abbott tweeted: “Biden’s vaccine mandate is an assault on private businesses. …” “I issued an Executive Order protecting Texans’ right to choose whether they get the COVID vaccine & added it to the special session agenda. Texas is already working to halt this power grab.”
Several state governors and attorneys general – including Texas AG Ken Paxton – have vowed to challenge and block the administration’s vaccine mandate and OSHA’s upcoming regulation.
Mark Shoffner is a partner at Bell Nunnally who specializes in employment law.
Mason Jones is an associate at Bell Nunnally who focuses on commercial litigation.