Provisions within the vaccine mandates announced by the Biden administration will affect employers across the U.S. hotel industry, but the exact details of these mandates aren’t available just yet.

In a webinar hosted by law firm Dorsey & Whitney, labor attorneys laid out for employers what they could glean from the information currently available and what still needs to be revealed.

One of the upcoming mandates will be a new emergency temporary standard from the Occupational Safety and Health Administration making companies with more than 100 employees require COVID-19 vaccinations or weekly COVID-19 testing.

An OSHA emergency temporary standard, or ETS, is a rule the agency can create that goes into effect for up to six months, Partner Gabrielle Wirth said. It’s a standard created when employees are in “grave danger” from exposure to substances determined to be toxic or physically harmful.

“With the explosion of COVID, especially the delta variant, that’s what they’re relying on in terms of thinking we’re now at a point where this strain is so dangerous that we have to react on an emergency basis,” she said.

The ETS can last up to six months, but to extend any further, OSHA would have to create a permanent rule, which requires getting public comment, having testimony and providing evidence in support of it, she said. Once the emergency goes away, OSHA can be challenged on it.

The first step for companies that fall under this requirement is to inform employees about the new requirement, Partner Jillian Kornblatt said. There have been a lot of headlines about the new mandates, and passions can run high in both directions on this, she said.

“Letting employees have a little time to get their heads around the idea that this is going to be the new reality sooner than later is a good idea,” she said.

From the operational perspective, the mandatory vaccine option is simple, Kornblatt said. While it may be hard for a lot of people to accept, it’s the easier option for a company’s operations. The weekly testing option may be more palatable to some employees, but it will mean more planning and work for the company.

The U.S. Equal Employment Opportunity Commission has stated federal equal employment opportunity laws do not prevent employers from requiring the COVID-19 vaccine provided they comply with reasonable accommodations provisions in the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.

For testing, the company would need to know what their health insurance company will cover in terms of testing, Kornblatt said. It will also need to know what percentage of the employees are on the company’s health plan versus having coverage elsewhere.

The company also needs to determine what it will do with the test results.

“Think about who is going to get these test results every week,” she said. “That’s a lot of data for a lot of people that is going to need to be kept separate from other employment records. What are you going to do with this?”

While these details might come out with further OSHA guidance, employers will also need to figure out which tests they will allow, she said. They’ll also need to determine how soon employees will need to be tested before they come into their workplace.

The prior executive order regarding federal employees and contractors called for COVID-19 vaccinations or testing once or twice a week, Associate Alyson Dieckman said. The unvaccinated employees would also need to wear masks in any public areas and were subject to certain physical distancing and travel restrictions as well.

The new mandate coming out for federal contractors and subcontractors requires vaccination with no alternative for testing.

When announcing this plan, the Biden administration explained federal contractors and subcontractors will have about 75 days to comply, which from the date of the announcement is Nov. 22. The Safer Federal Workforce Task Force will issue compliance guidance by today.

A federal contractor is any person or organization that has a direct contract with the federal government, Associate Andrew James explained. A federal subcontractor is an individual or organization who does business with another company or individual who holds direct contracts with the federal government.

The easiest way for a company to determine whether it’s a federal subcontractor is to receive a letter from the company it is working with that is working for the federal government, he said. The letter would state the company in question is a subcontractor necessary for the performance of a government contract. Another way to determine a company’s status is to search the Federal Procurement Data System or USAspending.

“If you're part of a large company that has a parent organization and that parent has contracts with the federal government, it’s worth calling a good lawyer because you may well be a contractor just based on the [Office of Federal Contract Compliance Programs’] view of a single enterprise,” he said.

The Americans with Disabilities Act requires employers to make reasonable accommodations for employees who have a disability.

While employees can seek a reasonable accommodation regarding these vaccine requirements, what is considered a reasonable accommodation has been in flux recently due to the serious staffing shortage, Kornblatt said, pointing specifically to the health care industry. What might normally be considered a reasonable accommodation might now be considered an undue burden for a company that is short-staffed.

An undue burden is not a one-size-fits-all designation, she said. A smaller company would be expected to do less because it has fewer employees and less money. A larger employer, however, might have a more difficult time arguing an accommodation is an undue burden because of its cost unless the cost is a high amount.

The Job Accommodation Network is an organization funded by the U.S. Department of Labor along with universities and private entities that provide additional resources on this topic, including a section devoted to ADA accommodation requests in response to COVID-19, she said.

A religious exemption would be for any belief or practice that conflicts with a person’s employment duties, Wirth said. That could apply for a Muslim employee who is opposed to any vaccine that includes pork gelatin, something several vaccines have, because of their religious beliefs regarding pork.

One of the bigger conflicts now in this area is that many cite religious reasons for not getting vaccinated while their religious leaders, including Pope Francis, have come out in support of certain vaccines, she said.

In these cases, testing is a great option because it doesn’t require the company to make exceptions, Wirth said. Those who have this policy don’t need to worry about all the exemptions because they have reasonable accommodations through testing, masks and other options.

Despite what Facebook posts say, the Equal Employment Opportunity Commission guidance states that asking for an employee’s vaccination status or proof of vaccination itself is not a medical inquiry because it won’t prompt the employee to provide any disability-related information, James said.

“Be careful what your follow-up to that question may be, because if you elicit more specific information, such as why the employee did not get vaccinated, then you may well be wading into territory where you're requesting disability-related information that could trigger state and federal confidentiality rules,” he said.

The 1905 U.S. Supreme Court case Jacobson v. Massachusetts dealt with a challenge to the state requiring vaccination against smallpox, Dieckman said. The Supreme Court upheld the vaccine mandate, but the law came at the state level, so it’s unknown how a legal challenge would play out regarding the federal mandate.

Several governors have threatened to sue, claiming the federal government can’t impose mandates like this, Wirth said. Some of the first challenges will likely come from Texas, Montana and Florida, which do not have their own OSHA-approved state plans and fall under federal jurisdiction.

“I don’t know how successful they’ll be, because there’s a lot of history under OSHA that as long as there’s evidence of the grave danger, the executive branch does have the power to have OSHA issue these kinds of regulations,” she said.