Legal Alert

Federal Vaccine Mandates Maze Can Trap Unwary Employers

by Shannon D. Farmer, Brian D. Pedrow, and Jessica G. Federico
November 10, 2021


The Biden Administration has announced vaccine mandates for certain federal contractors and subcontractors, employees of large, private employers, and certain health care workers, all of which are slated to take effect January 4, 2022, with some steps required no later than December 5, 2021. The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) for companies with 100 or more employees has already been challenged in court, and a federal appeals court has stayed the rule pending further review. Whether the ETS is permanently enjoined―in full or in part―remains to be seen. Companies subject to the ETS, at a minimum, should be prepared to comply if the stay is lifted. Companies subject to the other vaccine mandates discussed in this Alert should take steps now to comply with those mandates.

The Upshot

  • Newly announced federal rules require that private businesses with 100 or more employees, employers of certain health care workers, and certain federal contractors and subcontractors implement vaccine mandates by January 4, 2022.
  • Each of the mandates has different requirements for employers and different consequences for unvaccinated employees.
  • Private businesses with 100 or more employees and employers of certain health care workers must take initial steps to comply with the mandates by December 5, 2021.
  • Although the federal rules state that they will preempt any state or local laws that conflict with the mandates, including those aimed at banning vaccine mandates, litigation has already been filed by a number of states challenging the OSHA ETS for large, private employers, and a federal appeals court has stayed the rule from taking effect, at least temporarily.
  • The OSHA ETS for large, private employers will not apply to workplaces subject to the federal contractor rule or the health care worker rule, but some companies may have employees in different locations that are subject to different rules, making compliance even more challenging.

The Bottom Line

Employers should act quickly to determine if any of these mandates apply to them and what they need to do to comply. Attorneys in Ballard Spahr’s Labor and Employment Group continues to assist employers with vaccination mandate compliance.

On November 4, 2021, the Biden Administration announced details of two major vaccination requirements and extended the deadline on another. The details of each are discussed below.

Large, Private Employers

The Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) requires employers with 100 or more employees to mandate vaccinations; alternatively, such employers may choose to require only masking in the workplace with weekly COVID-19 testing. A summary of the ETS can be found here.

OSHA has provided optional, template policies, available here. Governmental employers that are not subject to OSHA are not covered by this ETS; however, governmental employers in Plan States are subject to the new requirements. Plan States (i.e., those states that have opted out of OSHA and are covered by their own state plans) will have 30 days to implement the ETS or their own standard, which must be just as protective of workers as the ETS; if the states do not, they may face legal action from OSHA. A list of the 22 Plan States is available here.

To determine whether an employer has 100 or more employees, all employees of the employer in the U.S. must be counted, including part-time workers and seasonal employees. However, independent contractors are not counted toward the 100-employee threshold. For staffing agencies, employees placed at a host employer are counted as employees of the agency. The number of employees is initially determined as of November 5, 2021. If an employer had 100 or more employees covered on that date, the employer remains covered as long as the ETS remains in effect. If the employer is below 100 employees as of November 5, but later has 100 employees, the employer will then be covered by the ETS.

Certain employees are not covered by the ETS, even if their employer is:  those who telework, those who work from locations where no other people are present, and those who work exclusively outdoors. These employees do still count toward the 100 employee threshold, however.

If employees cannot show proof of vaccination or if they do not produce a negative test weekly, they must be removed from the workplace pending test results. There is no exception for employees who have previously had COVID-19 but who are not vaccinated. Employers are not required to provide paid time off to any employee during such periods of removal.

Importantly, under the OSHA ETS, the reasons why an employee is not vaccinated do not impact the steps the employer must take to ensure compliance. Employers need not inquire into whether the employee has a medical or religious reason for not being vaccinated, or whether it is simply a matter of personal preference. Either employees must be vaccinated, or they are required to mask and test weekly.

If employees test positive for COVID-19, they also must be removed from the workplace until they have met the Center for Disease Control’s (CDC) return-to-work criteria, produced a negative test, or obtained the return-to-work recommendation of a health care provider. After a positive test, employees are exempted from testing for 90 days.

The OSHA ETS approves of any COVID-19 test that is:

  • Cleared, approved, or authorized, including in an Emergency Use Authorization, by the Food and Drug Administration to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
  • Administered in accordance with the authorized instructions; and
  • Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

The ETS does not require employers to cover the cost of COVID-19 testing for unvaccinated employees, absent another law or agreement stating otherwise. Of course, employers may choose to do so. Further, employers providing testing as an alternative for unvaccinated employees with medical or religious exemptions may still need to cover the cost of testing under prior Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) guidance and decisions on the cost of required medical examinations (and the time spent undergoing those examinations). State laws and collective bargaining agreements also may require employers to pay for the cost and time spent testing. Employers are not required to pay for providing masks for unvaccinated employees under the ETS.

Acceptable proof of vaccination status can be: (i) the record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 vaccination record card; (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or (v) a copy of any other official documentation that contains the type of vaccine administered, date of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine. Absent such proof, an employer should consider an employee to be unvaccinated.

Employers are required to maintain records of employee vaccination and of test results for unvaccinated employees. These records must be maintained as confidential medical records, at least for as long as the ETS is in effect. The method for maintaining the records should also comply with the existing Americans with Disabilities Act (ADA) requirements for confidential medical records. Critically, employers that already have determined employees’ vaccination status prior to the effective date of the ETS through another form and retained the requisite records need not re-determine the vaccination status of those same individuals. Employers also must report work-related COVID-19 hospitalization and deaths to OSHA.

Additionally, although the deadline to complete vaccination or begin weekly testing and masking is January 4, employers must take certain actions starting no later than December 5:

  • Employees who remain unvaccinated must wear masks in the workplace. OSHA will accept any mask that completely covers the worker’s nose and mouth; is made with two or more layers of a breathable, tightly woven fabric; and secures to the head with ties, ear loops, or elastic bands that go behind the head;
  • Employers must provide up to four hours of paid time off to employees in order to receive each vaccine shot; and
  • Employers must provide a reasonable amount of time to employees to recover from side effects from receiving the vaccine. The ETS does not provide a specific amount of time. Employers may require employees to use accrued sick leave, but if the employee has no accrued leave available, the employer must provide other leave, although the ETS does not say it must be paid leave. Employers may set a cap on the amount of time needed to recover from side effects, and OSHA has stated that two days is presumptively compliant.

Finally, employers have certain communication requirements with respect to their employees and must:

  • Inform employees about the ETS;
  • Provide employees with the CDC publication, “Key Things to Know About COVID-19 Vaccines;”
  • Inform employees about OSHA’s requirements regarding discrimination, discharge, and retaliation for reporting injuries or illnesses; and
  • Warn employees of criminal penalties for knowingly supplying false statements or documents.

Employers not complying with the ETS could face a fine of up to $13,653 for each “serious” violation. A “willful” violation, such as an employer deliberately ignoring its compliance obligations, could entail a fine as high as $136,532 per violation.

Covered employers should keep in mind that meeting the requirements of the ETS is the “floor” to a business’s COVID obligations. Employers can choose to impose stricter requirements that are consistent with applicable law, such as requiring employees to be vaccinated unless they have a religious or medical accommodation. In addition, the rule does not absolve employers of any collective bargaining obligations they may have regarding the effects of implementation or any stricter requirements imposed by law.

Employers need not comply with both the ETS and the federal contractor requirements for the same workplace. Employers covered by the federal contractor mandate are subject to different requirements, discussed below.

Numerous states, businesses, and individuals immediately challenged the ETS in the Fifth, Sixth, Seventh, Eighth and 11th Circuit Courts of Appeals. The Fifth Circuit issued an order on Saturday, November 6, staying the ETS until the issue could be fully reviewed, stating that “the petitions give cause to believe there are grave statutory and constitutional issues.” Because numerous petitions for review were filed challenging the rule in multiple federal courts of appeals, the U.S. Department of Justice asked the courts to consolidate all the challenges for consideration by one court. The court which will hear all the cases will be selected by a “lottery” on November 16. Given the uncertain outcome, an employer’s best path forward may be to be prepared to comply immediately if the stay is lifted.   

A section-by-section summary of the OSHA ETS is attached for more details.

Health Care Employers

The Centers for Medicare & Medicaid Services (CMS) announced an Interim Final Rule requiring that all staff employed by covered Medicare- and Medicaid-certified providers must receive a first COVID-19 vaccine dose by December 5 and both doses of a two-vaccine series by January 4 unless they have been granted a medical or religious exemption. The requirement applies to all employees, licensed practitioners, students, trainees, volunteers, and any individual who provides care, treatment, or other services for a covered provider and/or its patients, regardless of clinical responsibility or patient contact.

The only individuals exempt from the requirement are those who must be granted medical accommodations under the ADA or religious accommodations under Title VII and those providing services performed exclusively offsite and who do not have any contact with any patients or other staff (i.e., people who work 100% remotely). Employers are not permitted to grant exemptions that are not required by the ADA or Title VII to covered employees. Accommodation requests must be submitted by December 5, 2021, for unvaccinated employees to be allowed to keep working.

The vaccination requirement applies to the following Medicare- and Medicaid-certified provider and supplier types: ambulatory surgery centers, community mental health centers, comprehensive outpatient rehabilitation facilities, critical access hospitals, end-stage renal disease facilities, home health agencies, home infusion therapy suppliers, hospices, hospitals, intermediate care facilities for individuals with intellectual disabilities, clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services, psychiatric residential treatment facilities (PRTFs), programs for all-inclusive care for the elderly organizations (PACE), rural health clinics/federally qualified health centers, and long-term care facilities.

This CMS rule essentially supplements the OSHA Health Care ETS issued earlier this year, which applies to many of the same health care providers, but did not require vaccinations. Employers and workplaces who were covered by the OSHA Health Care ETS remain bound by those requirements, in addition to these new CMS requirements. A fuller discussion of the OSHA Health Care ETS is available here.

The CMS Rule permits a delay of the requirement for people who cannot be vaccinated due to clinical precautions (e.g., people who have recently tested positive for COVID-19). Staff who have COVID-19 antibodies are not exempted. 

The facility’s medical exemption process must ensure that requests for medical exemption are supported by documentation that meets the following requirements: it is signed and dated by a licensed practitioner, who is not the individual requesting the exemption and is acting within their respective scope of practice based on applicable state and local laws; it specifies which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive; and it identifies the recognized clinical reasons for the contraindications. Additionally, CMS has stated that a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements is also expected. 

The CMS Rule does not require testing for those granted an accommodation or any specific additional requirements, leaving it to the facility to determine what additional measures are necessary to minimize the risk of COVID-19 transmission.

In addition, the CMS Rule requires providers to develop processes for the following:

  • Processing exemption requests based on recognized medical conditions, or religious beliefs, observances, or practices;
  • Ensuring that all covered staff receive, at a minimum, a single-dose COVID-19 vaccine, or the first dose of a multi-dose COVID-19 vaccine, prior to providing any care, treatment, or other services for the center and/or its patients;
  • Ensuring that all staff are fully vaccinated (except for those receiving exemptions);
  • Implementing additional precautions to mitigate the transmission of COVID-19 for all staff who are not fully vaccinated (i.e., those exempted from vaccination for medical or religious reasons);
  • Tracking and securely documenting employee vaccination status; and
  • Tracking and securely documenting exemption requests and accommodations.

CMS has also issued FAQs that aid in interpreting the new Rule.

Employers do not need to comply with the OSHA ETS and the CMS Rule for the same employees―employees who are covered by the CMS Rule must only satisfy those requirements. However, many health systems and large health care entities will have some employees who are subject to the CMS Rule and others who are not and will, therefore, be subject to the OSHA ETS. Employers in that situation who wish to adopt uniform policies across the workforce can do so, provided that the policy they adopt complies with at least the minimum requirements of both rules.

Federal Contractors

In September 2021, President Biden issued an Executive Order requiring that employees of certain federal contractors and subcontractors be fully vaccinated against COVID-19 by December 8, 2021, unless they are granted a medical or religious exemption. Covered federal contractors will now have until January 4, 2022, to come into compliance; this aligns the compliance deadlines for all three of the recent COVID-19 rules. More information on which federal contracts are covered can be found in the Guidance issued by the Safer Federal Workforce Taskforce.

Like the CMS Rule, and unlike the OSHA ETS, testing is not allowed in lieu of vaccination. Rather, the guidance mandates vaccinations for COVID-19 unless a covered employee is legally entitled to a religious or medical exemption. Like the CMS Rule, there is no specific accommodation prescribed for employees who have religious or medical exemptions. It is up to the employer to determine what additional safety measures are necessary, in addition to the masking and social distancing requirements in place at federal workplaces and complying with any testing rules required for accessing federal property.

The Safer Federal Workforce Taskforce has published FAQs to assist employers in interpreting President Biden’s Executive Order. 

Workplaces that are covered by the federal contractor mandate are not subject to the OSHA ETS.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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