Business Leaders Should Plan Now for Vaccine-or-Testing Rule

The Occupational Safety and Health Administration's rule on workplace vaccination or testing is currently tied up in litigation, but leaders should start planning now for how they will implement the rule if it survives the legal challenges. 

By Lisa Nagele-Piazza, J.D., SHRM-SCP November 15, 2021
Business Leaders Should Plan Now for Vaccine-or-Testing Rule

President Joe Biden's workplace vaccination-or-testing rule is currently tied up in litigation, but business leaders should start planning now for how they will implement the rule if it survives legal challenges. 

The Occupational Safety and Health Administration's (OSHA's) emergency temporary standard gives businesses with at least 100 employees two choices:

  1. Require all employees to get vaccinated against the coronavirus unless they exclusively work remotely or outdoors or qualify for an exemption.

  2. Require unvaccinated employees to wear masks and undergo COVID-19 testing on at least a weekly basis.

Compliance deadlines are rapidly approaching. Among other steps, businesses will need to determine the vaccination status of each employee and develop a written vaccination-or-testing policy by Dec. 6, according to OSHA. Unvaccinated workers will be required to wear masks indoors by Dec. 6 and provide a negative COVID-19 test on a weekly basis beginning Jan. 4. 

The rule is expected to cover about two-thirds of private-sector employees, but less than 2.5 percent of private-sector employers, according to the latest Bureau of Labor Statistics data.

Don't Wait for Litigation Outcome

On Nov. 6, the 5th U.S. Circuit Court of Appeals temporarily suspended the rule while it considers a challenge brought by state attorneys general and private employers, including locally owned supermarkets, that oppose the directive. The employers argued that OSHA's "claimed authority over [employees'] private lives and vaccine status is an egregious government overreach." On Nov. 12, the 5th Circuit reaffirmed its suspension of the rule. 

The U.S. Department of Justice has asked the court to lift the order. "In the standard, OSHA provided over 100 pages of thoroughly reasoned analysis showing that COVID-19 presents a 'grave danger' to unvaccinated workers, and that the requirements of the standard were 'necessary' to address that grave danger," according to the department.  

Similar challenges to the ETS have been filed with other federal appeals courts, and the cases will now be heard by the 6th U.S. Circuit Court of Appeals in a consolidated action. Ultimately, the U.S. Supreme Court could decide the fate of OSHA’s ETS.

Employment law attorneys say businesses shouldn't wait for a final answer from the courts to start planning. "There's just not enough time to get ready for the ETS if you don't start now," said Julie Vanneman, an attorney with Dentons in Pittsburgh. 

Kristin White, an attorney with Fisher Phillips in Denver, recommended that employers provide notices and start gathering vaccination information now. "Then, they can hold off finalizing the plan and testing for a couple of weeks while they gather vaccine information and the litigation moves forward." 

Employers may also choose to implement a vaccination policy regardless of the litigation outcome, since the ETS establishes minimum requirements for covered businesses. 

Many large businesses—including tech companies, major airlines and health care facilities—already implemented vaccination mandates for some or all of their workers, particularly as the highly contagious delta variant caused COVID-19 cases to surge over the summer. Courts have generally upheld such policies.   

"Vaccination requirements are good for the economy," Biden said in a statement supporting OSHA's ETS. "They make our economy more resilient in the face of COVID and keep our businesses open." 

Some business groups, however, oppose strict standards. "It is critical that the rule not cause unnecessary disruption to the economy, exacerbate the pre-existing workforce shortage or saddle retailers, who are already taking considerable steps to keep their employees and customers safe, with needless additional requirements and regulatory burdens," said David French, the National Retail Federation's senior vice president for government relations. 

What's Expected

In addition to creating the vaccination-or-testing policy, OSHA's rule will require covered businesses to take the following steps:
  • Provide paid time off to workers to get vaccinated and recover from any side effects.

  • Obtain proof of vaccination and maintain records of each employee's vaccination status.

  • Require prompt notification when employees test positive for COVID-19 (regardless of vaccination status) and remove them from the workplace until they meet certain criteria.

  • Ensure that unvaccinated employees wear face coverings when indoors or in a vehicle with another person for work purposes. (Note that employees do not have to wear a face covering when they are alone in an enclosed room, eating or drinking, or wearing a respirator—or when wearing a mask would create a hazard).
Additionally, employers should follow anti-discrimination guidelines from the Equal Employment Opportunity Commission and state agencies when reviewing employee requests for reasonable accommodations based on disability-related and religious objections. 

Notably, the rule doesn't require employers to pay for testing or face coverings, unless they are otherwise required to by state or local laws or in labor union contracts. Employers that allow for the testing alternative will also have to consider any wage and hour implications for the time it takes employees to undergo testing. 

"While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers," said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. "As part of OSHA's mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe."

Lisa Nagele-Piazza, J.D., SHRM-SCP, is Senior Legal Editor at SHRM.