Biden Administration Issues Vaccine Mandate for Large Employers

Private large employers will soon be required to comply with the recently issued OSHA Emergency Temporary Standard (ETS), requiring businesses with 100 or more employees to ensure their employees are vaccinated by January 4, 2022. Employees who cannot be vaccinated due to a medical or religious exemption must submit to weekly testing and wear face coverings while indoors at the workplace.

In assessing whether an employer meets the 100-employee threshold, employees are counted at the corporate or firm level, not per individual worksite or location. Full and part-time employees, seasonal and temporary workers (unless provided by a staffing agency) are counted in the total, regardless of their current vaccination status. Employees who work remotely are also counted in the threshold total, but may not be subject to the standard’s vaccination, masking, and testing requirements depending on if or when the remote employee is ever in the workplace. Independent contractors are not included in the employee count. Employers with 100 or more employees as of the effective date of the ETS (November 5, 2021) are covered by the ETS for the duration of the standard. Employers with fewer than 100 employees on the effective date are not covered by the standard unless and until the employer reaches 100 employees, at which time the employer is expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce.

Under the mandate, employers will be required to develop a mandatory COVID-19 vaccination policy, which may, at the employer’s discretion, allow employees to undergo weekly testing and wear a face-covering in the workplace in lieu of vaccination. According to recently published OSHA FAQs, employees who opt for testing (if permitted as an alternative under the employer’s policy) may be required to pay for the testing. The standard also requires employers to provide employees with up to four hours of paid time off to get the vaccine during working hours, and reasonable paid leave (up to two days) to recover from any side effects.

Washington employers should note that the State of Washington has 30 days to implement its own rules, which must be at least as effective as the federal rules but may also be more stringent. For example, Washington could potentially issue stricter rules, such as lowering the 100-employee threshold or eliminating the testing option. Washington employers may look to the recently issued OSHA standard as a guide but understand that the state rules may look somewhat different.

Associated Industries is monitoring these developments closely and will keep the membership informed. Employers should review the OSHA website which contains information on the OSHA standard, including sample policy templates for vaccines, masking, and testing as well as a comprehensive FAQ section. The site can be found here.