Starnes Davis Florie



September 21, 2021

On September 9, 2021, President Biden announced a series of workplace vaccination requirements applicable to large private sector employers.  The Occupational Safety and Health Administration (“OSHA”) rules implementing President Biden’s directives have not yet been published; therefore, precise details on the content of the rules are not yet available.  However, below are responses to common questions employers may have based on currently available information.

Does the vaccine mandate apply to my business?

The OSHA rule will apply to all businesses subject to OSHA regulation that have 100 or more employees.  Nearly all large private sector employers will be required to comply.  Department of Labor (“DOL”) officials have confirmed that the 100-employee threshold will likely be counted on a company-wide basis, rather than based on the number of employees working at a specific location.  While remote employees will likely be included in the 100-employee threshold, DOL officials have indicated that remote workers will probably not be subject to vaccination requirements.

When do these requirements take effect?

The private sector vaccine mandate will be implemented via an Emergency Temporary Standard (“ETS”).  OSHA estimates that the ETS will be released in the next 2-8 weeks.  Prior to issuance of the ETS, OSHA plans to release an FAQ including clarification regarding calculation of the 100-employee threshold.  The published ETS will likely contain a required date for compliance approximately 60-75 days following publication.  Once the ETS is enacted, it may remain in place for 6 months while a formal rule is developed and subjected to the required notice and comment.

If an employee refuses vaccination, how should the testing be performed?

The OSHA ETS will require that employers with 100 or more employees ensure that 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.  Employers must provide paid time off to allow workers to get vaccinated and recover from any vaccine side effects.  However, DOL officials have indicated that businesses may require workers to use their existing paid time off rather than offering additional designated time off for vaccination.

If an employee refuses the vaccine and opts for weekly testing, the ETS is expected to delineate the type of test required (antigen, PCR, etc.), the parameters for timing of the testing (once per calendar week, once every seven days, etc.), and the responsibility for testing costs.  Under the Fair Labor Standards Act, the time an employee spends getting tested at the employer’s direction is likely compensable time.

How will the vaccination requirements be enforced?

The ETS is expected to outline the documentation and verification requirements for compliance with the rule.  If employers are required to collect written documentation of vaccination status and test results, OSHA’s record retention rules may require that this documentation be retained as confidential medical records for the duration of the employment plus thirty years.  Employers who do not comply with the ETS could face OSHA citations and penalties of $14,000 per violation.  The ETS is expected to clarify whether the penalty will be enforced per company, per facility, per unvaccinated employee, etc.

Will the vaccine mandate survive legal challenges?

Governors in numerous states, including Governor Ivey in Alabama, have vowed to challenge the mandate as soon as it is published.  It is possible that enforcement of the ETS could be blocked while these challenges are litigated, but employers should be prepared to comply in the interim.  Challenges are likely to focus on OSHA’s legal authority to require vaccinations as well as the constitutionality of a federal workplace mandate.

OSHA may enact regulations via an ETS only where the agency determines “(A) that employees are exposed to a grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”   The rulemaking could be challenged on grounds that the agency cannot establish the requisite “grave danger” and/or that the vaccine mandate is not a necessary response to the perceived danger.  A similar rulemaking applicable only to healthcare employees has thus far survived legal scrutiny, but some question whether the same level of danger may be established in non-healthcare workplaces.

Beyond OSHA’s authority to enact the mandate and to do so via an ETS rather than a typical rulemaking, we expect challenges to the mandate to include a variety of constitutional arguments.  The United States Supreme Court ruled in Jacobson v. Massachusetts, 197 U.S. 11 (1905), that states can require vaccinations as necessary for public health or safety.  Therefore, challenges based on employees’ alleged rights to medical privacy or bodily autonomy should not gain much traction.  Challenges with a greater chance of success are expected to focus on alleged overreach by the federal government into police powers reserved to the state.  Additionally, challengers may argue that this type of regulation by an executive branch agency violates the constitutionally required separation of powers by overstepping into the legislative arena.

In Alabama, some employers have questioned whether the mandate would require them to violate Alabama’s Vaccine Passport Ban.  The Alabama Attorney General has confirmed that the Alabama Vaccine Passport Ban does not prevent employers from requiring vaccinations.  The Ban prevents businesses from discriminating against customers based on vaccination status, but does not address the employee/employer relationship.

Written by: Amber Whillock 

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