Planning for a new federal vaccine mandate is nearing completion and public and private employers across Washington are preparing for how the state will choose to enforce the new federal mandates.

As most readers are by now aware, in September President Biden announced a new national emergency temporary labor standard stating that employers with 100 or more employees must require employees to be vaccinated for COVID-19 or submit to regular weekly testing. The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) is responsible for publishing the details of the new labor rule. OSHA announced on November 1 that the federal vaccine mandate rules (known as an Emergency Temporary Standard) will be published in “the coming days.” A Labor Department spokesman said that the rule will require employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.” The OSHA rule will also require employers to provide paid time off for workers to get vaccinated and/or deal with vaccine side effects.

The final OSHA rule comes after nearly two months of receiving comments from stakeholders and after several conservative state attorneys general announced that they would challenge the vaccine mandate. However, state and federal courts have generally been upholding vaccine mandates as constitutional across the country.

In Washington, the federal OSHA rule will be implemented by the state’s Department of Labor & Industries (L&I). L&I will enforce the mandate by making sure that Washington’s labor rules meet or exceed the federal requirements. In recent statements (including here and here), Governor Inslee has said that while the state will wait to see the OSHA’s final language, the state does not favor allowing regular COVID-19 testing in lieu of getting vaccinated, and that Washington’s implementation of the federal standards could possibly omit the provision for employers to offer employees the ability to “test-out” of vaccination. The state could also expand on the employer vaccine requirements in other ways, including extending the mandate to employers with less than 100 employees, though no such expansions have been openly suggested to date.

AWC will continue to monitor this rulemaking and report the latest information as it becomes available.