COVID-19 in the Workplace — Vaccination Mandate on Horizon

COVID-19 continues to dominate discussions around workplace safety in California and across the nation — and big changes for businesses are on the horizon this fall and in early 2022.

Coming from Washington D.C.

On September 9, President Joe Biden announced a six-prong plan to fight COVID-19 (available at www.whitehouse.gov/covidplan). Most important to California’s general business community is the plan’s first prong (“Vaccinating the Unvaccinated”), which pushes COVID-19 vaccines via two mechanisms:

• Federal Emergency Regulation: The Occupational Safety and Health Administration (OSHA) will publish an emergency regulation compelling a “soft” vaccination mandate for all employees of employers with more than 100 employees. The mandate is expected to require employees to get vaccinated or produce a negative test before going to work every week.

Procedurally, California employers can expect a little delay before this one becomes applicable. After OSHA adopts the federal emergency regulation (the draft text isn’t even public yet), the California Division of Occupational Safety and Health (Cal/OSHA) will then be compelled by federal law to adopt an equivalent or more stringent standard within 30 days. And even after that standard is approved, it will likely allow employers 60 days or so in order to get their workforces into compliance.

• Vaccine Mandate for Federal Contractors: All we know at this point is that the federal government will begin adding language to contracts signed or extended after October 15 to compel vaccination (without a testing option) for federal contractors.

The specific language to be added is supposed to be drafted by October 8, and is not yet public. The language, when released, is expected to allow federal contractors until December 8 to come into compliance — but, again, that draft contract provision is not yet public.

Caveats

For both these mechanisms, employers should keep a couple of caveats in mind.

• Medical and religious exemptions will need to be made for individual employees, meaning that legal and human resources departments will need to be ready to process those issues as the mandates go into effect.

• Legal challenges may delay their effect, particularly for the federal emergency regulation, which one state (Arizona) has already filed a lawsuit to challenge. Although some legal experts believe the vaccine mandate is within OSHA’s authority, that doesn’t mean a legal challenge may not delay application of a mandate considerably — depending on if a district court judge grants an injunction.

California COVID-19 Rule

California’s COVID-19 emergency regulation is expected to be re-adopted in December for the final time (in roughly its present form, available at www.dir.ca.gov/oshsb/documents/Jun172021-COVID-19-Prevention-Emergency-txtbrdconsider-Readoption.pdf). Then, in spring 2022, the emergency regulation will either expire or be turned into a permanent regulation.

On September 23, 2021, Cal/OSHA hosted an advisory committee comprised of business leaders (including policy advocate Robert Moutrie on behalf of the California Chamber of Commerce), labor leaders, public health officials, and other stakeholders to discuss what a permanent regulation might look like. Notably, this discussion was intended only to help shape a draft of what the Cal/OSHA Standards Board might vote to approve next year and did not represent a commitment from the participants to support a permanent regulation.

The draft text for discussion is available at www.dir.ca.gov/dosh/DoshReg/covid-19-emergency-standards. This was only a draft, however, and both labor and business leaders expressed disagreement with various provisions, so some changes from Cal/OSHA can be expected in whatever eventually goes to the Standards Board next year.

But where will the vaccine mandate fit in California’s regulation? Although the text isn’t available yet, it appears likely that Cal/OSHA will adopt a second emergency regulation on COVID-19 (focused on vaccines) to comply with the federal requirement to adopt an equivalent standard to President Biden’s vaccine mandate within 30 days of federal OSHA adopting that mandate.

What About Boosters?

How will boosters fit into the federal regulation or California’s next regulatory text?

At this point, it isn’t clear. President Biden announced booster shots as part of his six-prong plan, but there appears to be uncertainty about who should get them and when.

Notably, an advisory body to the Centers for Disease Control and Prevention (CDC) recommended boosters for only limited segments of the population (elderly or vulnerable) but the CDC director recently overruled the panel and supported boosters for workers in high-risk workplaces as well.

That means boosters will be available soon — but it isn’t clear exactly when the federal regulation will mandate they be taken in order for a person to qualify as fully vaccinated.

In short — California employers have a lot to watch in the coming months. Keep one eye toward federal OSHA and the other toward Cal/OSHA to make sure you stay well ahead of workplace changes.

Staff Contact: Robert Moutrie

Previous articlePreparing for New COVID-19 Vaccine Rules
Next articleGovernor Signs CalChamber-Backed Bills to Boost Construction of New Housing
Robert Moutrie joined the CalChamber in March 2019 as a policy advocate. He leads CalChamber advocacy on occupational safety, tourism, insurance, unemployment insurance, immigration and education. He is CalChamber's expert on the COVID-19 workplace regulation and was closely involved in its drafting and amendments process at Cal/OSHA. Moutrie has represented clients on matters such as consumer fraud litigation, civil rights, employment law claims, tort claims, and other business-related issues in federal and state courts. He previously served as an associate attorney at the Oakland-based firm of Meyers, Nave, Riback, Silver & Wilson. Moutrie earned a B.A. in political science from the University of California, Berkeley, and a J.D. with honors from the University of California, Hastings College of the Law. See full bio.