Biden administration to require large employers to mandate employee vaccination or regular COVID testing

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On September 9, 2021, President Biden announced that he was directing the Department of Labor’s Occupational Safety and Health Administration (OSHA) to adopt Emergency Temporary Standards requiring many employers to mandate that their employees are vaccinated for COVID or tested weekly for COVID. The mandate will apply to employers with 100 or more employees and is expected to apply to nearly 80 million workers.

The new regulation gives employers options on how to comply, but California businesses must keep in mind state and local rules that may increase the relative cost of testing mandates. Specifically, California law may require that employers compensate employees both for the time spent taking a COVID test and for the cost of the test itself. Any employer considering this option should work with competent counsel to determine their obligations to cover the cost of testing and explore potential alternatives, such as in-house testing.

In addition, employers will need to design their policy with employee privacy in mind. First, employers should be careful about how they request information about vaccination and COVID status. The Americans with Disabilities Act (“ADA”) places limits on employers’ ability to inquire about employees' medical history and specific medical conditions, and also specifies when employers may request medical examinations of their employees. Employers should limit their questions only to vaccination and COVID status.

Second, employers collecting any medical information must comply with state laws regulating the collection, use, and disclosure of employee data. In California, the California Consumer Privacy Act (“CCPA”) requires employers to provide their California-resident employees with a privacy notice at or before the point of data collection. In addition, California's Confidentiality of Medical Information Act, restricts employers to requesting or using an employee’s "medical information" to certain circumstances. Employers must also "establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of that information."

Finally, once any medical information is collected about an employee, it must be stored in a secure method and access must be limited to authorized personnel. The unauthorized access of medical information may give rise to a private lawsuit under California law, and the CCPA makes bringing such suits as class actions much easier. The security of this data should be a first-order issue when planning to ask employees about vaccination status and COVID test results.

We will get more information in the coming days and weeks about the proposed Emergency Temporary Standard. Every business with 100 or more employees (or a number close to that) should start considering their options now, especially as this mandate may sharply increase demand for testing. Scali Rasmussen can help you update your COVID Prevention Plan so that you are in compliance with the law, while avoiding the pitfalls of California law.