President Biden's vaccine mandate has taken shape in the form of an Emergency Temporary Standard (ETS) promulgated by the Occupational Safety and Health Administration (OSHA). On Nov. 4, 2021, following direction by the Biden administration, OSHA issued an ETS requiring employers with 100 or more employees to implement a mandatory vaccination policy for their employees or have unvaccinated employees submit to weekly COVID-19 testing and wear a mask at work. On Nov. 5, 2012, one day after OSHA issued its ETS, the ETS was published in the Federal Register, making the ETS effective and starting the clock on the compliance deadlines. 

The ETS applies to private employers with at least 100 employees.  For a single corporate entity with multiple locations, all employees at all U.S. locations are counted for purposes of the 100-employee threshold.  This means that if a company has multiple offices and locations, and those offices individually have less than 100 employees, but collectively the employer employs 100 or more employees, the ETS applies.  Part-time employees count toward the company total; independent contractors do not. Employees who are not covered by the ETS (e.g., employees working from home) are still counted towards the 100-employee threshold.  An employer will be covered by the ETS if it reaches the 100-employee threshold while the ETS is in effect and will remain covered even if it then drops below 100 employees.

The ETS applies to all employees who come into physical contact with others while working in a workplace.  The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, who work from home, or who work exclusively outdoors.  However, the ETS applies in the event an employee who typically works remotely comes to a workplace.  This means that employees who work remotely or do not come into contact with other employees must comply with the ETS if they come into the office or come into contact with other employees in an indoor setting.

Regardless of which policy an employer chooses to implement, employers must determine the vaccination status of their employees.  Vaccinated employees must provide acceptable proof of vaccination, and that documentation is to be maintained by the employer.  Employers must also create a roster identifying each employee's vaccination status.  The ETS requires employers to provide up to four hours of paid time off for employees to get vaccinated and paid sick leave to employees to recover from vaccine side effects.

Testing documentation must be maintained by the employer and treated as a medical record.  Employees who are not fully vaccinated must be tested at least once every seven days and must provide documentation of their most recent test result to their employer no later than the seventh day.  Under the ETS, employers need not pay for COVID-19 testing.  There are, however, possible implications under federal and state wage and hour laws that should be considered, including potentially having to pay employees for time spent getting tested.

By Dec. 6, 2021, employers will have to be in compliance with the ETS.  This includes determining the vaccination status of all covered employees, adopting written vaccination policies that comply with the ETS, and requiring all employees who are not fully vaccinated to wear masks at the workplace. Starting Jan. 4, 2022, all employees must be vaccinated and/or all employees who are not fully vaccinated are required to be tested weekly.  Employers who fail to comply with the ETS may be subject to OSHA penalties, including up to $13,653 per violation for serious violations and heightened penalties for willful or repeated violations of up to $136,532 per violation.

While the stay of enforcement by the federal Fifth Circuit is only temporary to allow for arguments on the merits of the ETS to play out in court, it is likely that the Fifth Circuit will continue to block enforcement of the ETS until a ruling can be reached.  At the same time, similar lawsuits have been filed in the federal Sixth, Seventh, Eighth, and Eleventh Circuits.  It remains to be seen how these legal cases will play out in the different courts.  It may ultimately end up before the Supreme Court before all is said and done, but for now, the Fifth Circuit is leading the way by staying the enforcement of the ETS nationwide.   

Currently, whether this mandate will survive court scrutiny is uncertain.  For now, the ETS has been enjoined from being enforced.  Nevertheless, while employers need not immediately comply, employers should analyze their structure and workforce to determine if the ETS would apply to them.  If so, employers should familiarize themselves with the requirements of the ETS.  In doing so, employers should put compliance plans in place so that compliance will not be unduly burdensome or implemented in a hurried manner should the stay be lifted and the ETS go into effect.