By Kim Silvers, SPHR, PHRca

Earlier this month, President Biden announced he was mandating all private employers with 100 or more employees and health care facilities (including hospitals, nursing homes and home health agencies receiving Medicare and Medicaid reimbursements) to require employee vaccinations or be tested weekly for COVID-19.  (He also issued Executive Orders in the summer for all federal workers and contractors/subcontractors to be vaccinated[1].) There was quite a maelstrom of guessing/protests/sighs of relief (pick yours) – and now we wait.   In the meantime, the White House has issued a brief overview of the COVID-19 Action Plan here.

With this mandate, there are a number of things which will need to occur prior to rolling it out.  Here are a few of the steps and possible timeframes we’re hearing from our sources. No promises that any of these are realistic.

Step 1. Federal OSHA drafts and passes Emergency Temporary Standards (ETS) around Biden’s mandatory vaccination policy. (2 – 6 weeks)

Step 2.  The federal ETS is sent to states to implement. Those states with a state-level OSHA  (e.g., our Cal OSHA) will draft and pass their own ETS equivalent to or more stringent than the federal ETS. (At least 30 days) 

There are many states that do not have their own state OSHA and will be expected to implement the federal ETS immediately. As you can imagine, there’s already push back from the Attorneys General in many states. Who knows the timing for that resolution?

Step 3. States with a Cal OSHA equivalent will possibly allow a grace period of 50 – 90 days for employers to implement the vaccination ETS.  On a recent podcast sponsored by the California Chamber of Commerce, Robert Moutrie said, “Employers can anticipate likely a 3-4 month window before this is going into effect.”  He followed with the sage advice that it doesn’t mean employers should wait until then to consider plans for this rollout.

Of course, we have more questions than answers at this point.  Some of our sources have weighed in with their insider information and we’ll share them with you.

How do you count the 100 employees to determine if you’re subject to this mandate?  It looks like this will be the number of employees (not fulltime equivalents – FTEs) who work in the U.S.   It’s possible seasonal and temporary employees will be counted. Location does not seem to matter right now.  So forget about all those laws that use FTEs or a minimum number of employees within a certain radius.

What proof of vaccination status will be required for the federal ETS?  Probably a vaccination card or a self-attestation.

Will there be exceptions to the vaccination requirement?  Yes, we expect the seriously held religious beliefs and disability protections will allow employees to submit a vaccination exemption request for the employer to consider.  These are federally protected reasons.  And we have lots of experience with these on some of the CA businesses already subject to statewide vaccination mandates, e.g., those in health care and schools.

Which tests qualify if the employee is not fully vaccinated?  We’re not sure yet. What we DO KNOW is today it’s hard to find a test with results available in a short period.  There is some indication that self-administered tests may be considered.

Who pays for the employee’s time and testing fees if the employee is not fully vaccinated?  That remains to be seen, but we’re guessing it will be the employer in both counts.

What records will we need to retain on employees’ vaccination status and weekly testing results – and for how long?  The ETS should include this direction.

Is there some irony that the poor typing skills of the author result in “vaccination” being repeatedly spell-checked as “vacation”?  There is no explanation for Kim’s typing skills.

Ok, so we’ll slow things down a bit (and get serious again).  We’ll keep you posted as we know more.  Even if you have fewer than 100 employees, don’t expect you’ll remain untouched.  This is the Golden State.

As always, this is not to be considered legal advice.  We’re estimating (guessing, really) at what comes next.

[1] On September 24, 2021 the Safer Federal Workforce Task Force announced all covered employees of federal contractors must be fully vaccinated by December 8, 2021.  The full report is here.