Washington’s large employers, including cities, should continue to prepare to implement the federal large employer vaccine and testing mandate in January. While the federal mandate  is currently paused due to legal challenges, there are scenarios where employers will still need to implement the vaccine or test requirement in January 2022. One possible scenario is a court ruling in favor of the requirement. Another is the state using its own authority to implement the requirement in Washington. Under the rule, employees of large employers (100+ employees) will be required to get vaccinated for COVID-19 by January 4, 2022 or submit to weekly testing.

In early November, the U.S. Occupational Safety & Health Administration (OSHA) released the highly anticipated federal vaccine and testing emergency temporary standard that was announced by President Biden in September. Legal challenges to the rule across the country have resulted in a delay of implementation of the federal rule by OSHA, and all the challenges have been consolidated in the U.S. 6th Circuit Court of Appeals (Kentucky, Michigan, Ohio, Tennessee) to decide the fate of the federal emergency rule.

Washington, which is required to adopt labor standards “at least as effective” as federal standards, has decided to move forward with a slightly modified version of the federal vaccine and testing requirement for large employers. The move is in anticipation of the federal rule surviving legal challenges and is expected keep the state close to the original implementation schedule going into the winter holiday season.

When the federal rule was first released, L&I was required to adopt a state-level large employer vaccine mandate by December 5, and employees of large employers were required to receive their final vaccinations by January 4, 2022 or submit to weekly COVID-19 testing. L&I has said that the timeline could shift given legal challenges to the federal rule, and whether the state would need to adopt the mandate under its own authority. If it does so, the Department will give further notification to employers.

Governor Inslee has said that the state’s version of the large employer vaccine mandate will largely mirror the federal rule with only a few minor changes to make it compatible with the existing state laws. Importantly, he said that the state will retain the option for unvaccinated employees to “test-out” of vaccinations by taking weekly COVID-19 tests in lieu of getting vaccinated. Additionally, he said that the state would retain the federal employee count threshold, and only apply the vaccine and testing mandate to large employers with 100 or more employees. The Governor said that the state had ultimately chosen to retain the federal rule’s “test-outs” and employee thresholds to stay consistent with the eventual federal rule and would examine the federal emergency rule’s effectiveness at curbing COVID-19 before making major changes. The Governor’s office recently clarified that elected officials will not be considered employees for purposes of the vaccine or test requirement.

L&I is working on a draft rule that will allow the flexibility of the federal rule without lowering the current vaccine standards for state, healthcare, or school employees.

AWC will continue to track this requirement and provide updates.