California Public Employers May Face a State Vaccination Mandate Should OSHA Issue Regulations Based on President Biden’s Vaccine Initiative

09.23.2021

On September 9, 2021, President Biden announced several expansive COVID-19-related initiatives, in an effort to address persistent and alarming infection and hospitalization rates involving the Delta variant of the COVID-19 virus. The White House subsequently published a broad “Path Out of the Pandemic” webpage, summarizing its “six-prong comprehensive national strategy” for combating the pandemic and ostensibly “protecting our economy from lock-downs and damage.”

President Biden’s initiative centered on a national “Vaccinating the Unvaccinated” effort, which would include a “dual-track” vaccination or testing requirement for certain employees. President Biden directed the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop emergency temporary standards (“ETS”), which would detail the requirements, deadlines, and presumed exemptions for this federal mandate.

It remains to be seen when OSHA will issue these emergency regulations, whether these regulations will align with the sought goals and requirements in President Biden’s initiative (including the dual-track vaccination/testing requirement for certain employees), and how it will handle exemptions. This alert examines whether public sector employees may face a vaccination/testing rule, should OSHA issue vaccination-related ETS in the coming weeks.

Details of the Federal Vaccine Initiative

President Biden has directed OSHA to develop vaccination-related ETS on several fronts. Among others, these federal regulations would require employers in the private sector with 100 or more employees to enforce two primary rules: (1) obtain verification of full vaccination status from employees, or (2) obtain weekly testing results for COVID-19. Once OSHA enacts ETS covering these or other COVID-19-related subjects, federal law permits them to remain in effect for up to six months. Thereafter, OSHA would need to adopt permanent regulations following normal notice-and-comment rulemaking procedures.

Application to California Public Sector

OSHA itself does not cover State or local public employers.^[1] However, if OSHA takes action by issuing vaccine-related ETS, this action would likely result in public employers in California facing equivalent vaccine requirements. States may preempt federal regulation, and establish an equivalent state workplace safety agency by obtaining OSHA approval of a “State Plan.^[2]” California chose this route by obtaining federal approval for its “state plan” agency Cal/OSHA. Cal/OSHA regulates both public and private employees in the state for occupational safety and health violations. In order for California to retain federal authorization for Cal/OSHA, it must enforce regulations that are “as effective” as the standards or regulations passed by OSHA itself.^[3] Otherwise, such authorization could be rescinded.

The federal government has provided guidance which supports the conclusion that OSHA-issued vaccination regulations would ultimately apply in states with federally-approved “state plans,” such as California. For example, the Congressional Public Service^[4] published a report in February 2021, outlining how OSHA’s COVID-19 regulations apply to local public employers in California.^[5] The federal agency updated this report on September 13, 2021, in light of President Biden’s September 9, 2021 vaccination/testing mandate. Further, the U.S. Department of Labor advised the State of Maine’s Department of Labor on September 17, 2021 that its “forthcoming COVID-19 vaccination requirement will apply to public sector employers” in “Maine and the 25 other states and two territories with a state OSHA plan.”

Uncertainties Regarding the Mandate

In sum, public employers in California will likely be subject to a dual-track vaccination/testing mandate if OSHA adopts vaccine-related ETS. As noted throughout, it remains unclear when OSHA will publish its ETS, and what those emergency regulations will require employers to do concerning vaccines. However, once OSHA issues vaccine-related ETS, Cal/OSHA will be required to issue equivalent rules that will clearly apply to local public employers in California. As such, public employers in California face the prospect of implementing and enforcing mandated vaccination/testing before the end of the year.

In addition to the uncertainty surrounding timing and the details of such a vaccination rule, public employers should remain aware of other lingering issues on this subject.

Uncertainty of Whether Current 100 or More Employee Floor will Exclude Small Public Agencies

Given the anticipated federal rule applying to workforces of 100 or more employees, Cal/OSHA would be required to adopt ETS that require vaccination or regular testing for public employers that employ 100 or more workers. Such a state regulation would exclude a host of smaller, local public agencies that employ less than 100 total employees.

It is not clear, however, if OSHA will keep this 100 or more employee limitation in the ETS that it issues. In addition, Cal/OSHA is legally mandated to adopt regulations that are at least as effective as federal ETS, but it could choose to adopt broader (i.e. more effective) rules, which could apply to public employers with less than 100 employees.

2. Potential Legal Challenges to Federal ETS

Any ETS issued by OSHA will will likely face legal challenges that could delay or halt the adoption of analogous standards by Cal/OSHA. Under federal law, OSHA may issue emergency regulations on an expedited basis if two factors exist: (1) a workplace hazard exposes employees to grave danger; and (2) emergency regulation is necessary to protect employees from this danger.^[6] In the past, employers have disputed whether OSHA has met both these factors in issuing previous ETS to address other workplace hazards.

The COVID-19 pandemic arguably poses an unprecedented level of risk to employees in the workplace. Given this, OSHA has recently issued a COVID-19-related ETS for healthcare workers. The agency posted an “August Report” online, in which it determined that “the requirements of the healthcare ETS… remain necessary to address the grave danger of COVID-19 in healthcare.^[7]” However, this determination may not provide much guidance about the level of legal support for OSHA’s anticipated vaccination/testing ETS, as vaccination/testing rules are far more burdensome than (for example) face covering or social distancing requirements. Public employers should monitor these developments, in the event OSHA and/or Cal/OSHA’s vaccine-related ETS face legal challenge.

3. Other Implications for Cal/OSHA Vaccination Rules

In the event Cal/OSHA adopts dual-track vaccination/testing rules in ETS, based on federal OSHA regulations, public employers will face numerous enforcement issues and challenges. We encourage readers to revisit our prior December 2020 alert on the implications of an employer-adopted vaccination policy.^[8] While these issues manifest in different ways under a government vaccine mandate compared to a voluntary employer policy, they involve similar sets of challenges.

First, any federal or state ETS will likely include exemptions for employees with qualifying medical reasons, or sincerely-held religious beliefs, observances or practices. As with other details concerning OSHA’s yet-to-be issued ETS, the extent of any exemptions also remains unclear. Our prior alert summarizes the basic contours of these exemptions.

Second, any vaccination-related requirement would likely trigger short order bargaining obligations for public employers. To the extent federal and/or state ETS impose mandatory obligations on public employers, they may be excused from negotiating on the decision itself under the supersession doctrine provided by the Public Employment Relation Board (“PERB”) – that is, that external law sets an inflexible standard and/or immutable provisions with which the employer must comply.^[9] However, public employers will likely still owe a duty to bargain on the effects of any vaccination/testing mandate.

Public employers should proceed cautiously and engage in necessary effects bargaining, as PERB is wary to excuse an employer’s failure to do so even under the emergency exception.^[10] Further, as we noted in another firm alert, the Board recently signaled that even if a vaccine policy remains non-negotiable, an employer still owed a duty to engage in effects bargaining.^[11] We advise that public employers consult with counsel to ensure that any applicable bargaining obligations are considered before taking action in response to a Cal/OSHA-issued vaccination ETS.

Finally, public employers should evaluate how to handle public relations and morale issues in the workforce, once a state vaccination/testing mandate goes into effect. Employers throughout the country remain acutely aware of the growing tension and resistance among employees with respect to various government COVID-19 protocols. Public employers should internally strategize on how to prepare for an anticipated dual-track vaccination mandate, including how to proactively interface with staff, anticipate administrative burdens imposed by the mandate, and gauge the financial impact of compliance (e.g. cost of collecting and reviewing weekly COVID-19 test results). Public employers should collaborate with stakeholders and counsel to prepare a plan for addressing anticipated concerns and/or effects.

As with numerous other aspects of the COVID-19 pandemic, this situation is rapidly evolving. We will continue to monitor how OSHA responds to the White House’s vaccine initiative, and will provide updates to this Alert once the details and timing of these anticipated federal regulations come into focus. In the meantime, please feel free to contact the Authors of this Alert or your regular AALRR counsel with any questions.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

^[1] 29 U.S.C. § 652(5)[“employer” defined to exclude “any State or political subdivision of a State”].

^[2] 29 U.S.C. § 667.

^[3] 29 U.S.C. § 667(c)(2), (6).

^[4] The CRS is a branch of the Library of Congress, and provides policy and legal analysis for both chambers of Congress.

^[5] Available here.

^[6] 29 U.S.C. § 655(c)(1).

^[7] See link.

^[8] See link.

^[9] See e.g. San Mateo City School District v. Pub. Employment Relations Bd. (1983) 33 Cal.3d 850, 864-65; Berkeley Unified School District (2012) PERB Dec. No. 2268, p. 9.

^[10] See e.g. County of Sonoma (2021) PERB Dec. No. 2772-M, p. 52; our prior December 17 alert highlights the limits and risks involved in this exception as well.

^[11] See link.