Washington state’s large employers, including cities, are encouraged to prepare to implement the federal large employer vaccine and testing mandate in January. While the rule 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 be 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 the Department of Labor & Industries (L&I) says it aims to keep the state close to the original implementation schedule going into the winter 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 reports that the timeline could shift given legal challenges to the federal rule, and whether the state would need adopt the mandate under its own authority. The Department would give further notification to employers if it chooses to adopt the rule under state authority.

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 being vaccinated. Additionally, 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 state has ultimately chosen to retain the federal rule’s “test-outs” and employee thresholds to stay consistent with the eventual federal rule and will examine the federal emergency rule’s effectiveness at curbing COVID-19 before making major changes. The Governor’s office also recently clarified that elected officials will not be considered employees for purposes of the vaccination or test requirement.

L&I has said it 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. As of this writing, the agency has not yet released the rule language.

AWC will continue to track this requirement and provide updates.

A new COVID variant in Washington – Omicron

As readers are likely aware, the new “omicron” COVID-19 variant has been found in Washington. While scientists and medical experts are still learning about the variant, it appears to be more transmissible than previous variants, though it does not to appear to result in more severe disease than delta did this summer. The Department of Health (DOH) recommends that unvaccinated people be vaccinated as soon as possible and that anyone over age 18 get their booster if it has been more than six months since their last Moderna or Pfizer COVID-19 shot, or more than 2 months since their Johnson & Johnson shot. Health officials continue to recommend full vaccination and a booster as strong protection against severe disease.

WA Verify

For cities that need to check on a person’s vaccination status, the Department of Health has released a new digital COVID-19 vaccine verification system called WA Verify. As more employers, businesses, and public events require vaccinations, it will be increasingly necessary to quickly check a person’s vaccination status. WA Verify allows an individual to show a QR code to an establishment which can be scanned to verify their status. This eliminates the need to show a CDC vaccination record card.

City vaccine mandate enforcement survey results

In the end of October and early November, AWC conducted a survey to learn how cities fared in implementing the first rounds of state and local COVID-19 vaccine mandates this summer and fall, including the federal mandate. 101 cities replied to the survey and reported widespread compliance with state and local vaccine mandates. However, they also reported mixed feelings on the then-impending federal mandate. You can read more about the survey results here.