Fact Check: Vaccination Mandate: Are private-sector employers in Washington required to enforce a vaccine mandate?
October 29, 2021
Over the last 600+ days of the COVID-19 pandemic, builders and businesses have been whipped back and forth on how businesses can operate. Back in March 2020, Gov. Jay Inslee told private sector builders they couldn’t continue to build and they weren’t essential. Five weeks later, due largely to active and effective advocacy from BIAW, senior officers, members, staff, lobbyists, and others, private construction became the first “non-essential” business added to the “essential” list so they could restart building Washington’s communities.
Since then, it seems nearly weekly, we’ve heard announcements about new requirements for job sites and businesses. It has been hard. But BIAW has helped its members navigate the COVID-19 regulatory rule whiplash and we remain committed to continuing to help you navigate the sea of ever-changing rules.
No broad private sector vaccine mandate at this time
Recently, we’ve been hearing a lot about private employer vaccine mandates.
There is no current Washington state rule requiring all fully private employers to require a COVID-19 vaccine.
That said, SOME private employers fall under the Governor’s existing mandate order for healthcare. first responders, higher education, government and certain contractors. The state Dept. of Labor & Industries (L&I) recently released rules supporting this mandate. These recent rules do not impose a vaccine mandate on the full breadth of private employees.
The statewide public sector vaccine mandate has had some negative effects on our industry, such as the substantial loss of electrical inspection program employees which will affect our ability to get timely inspections. However, the Governor has not yet applied a similar mandate to all private-sector businesses. That said, some private sector businesses have opted to voluntarily require vaccines of their employees. It’s a personal choice at this point.
Private sector vaccine mandate expected soon
Once President Biden’s Occupational Safety and Health Administration (OSHA) releases its emergency rule on the federal vaccine mandate for all employers, the Governor is likely to follow suit in requiring private employers to require their employees to provide proof of vaccine.
Originally, we heard the OSHA’s emergency rule was to be in place by Nov. 1, but seems like it may be delayed. According to Biden, the OSHA rule will require employers with 100 or more employees to require employees to either be vaccinated or have a regular negative COVID test coupled with broad accommodation language and religious exemptions. L&I will then likely be directed to adopt a rule that requires private workers to be vaccinated in our state. The nation is still waiting on the language in this coming OSHA emergency rule.
Washington is a “state plan,” meaning our occupational and health standards need to be “at least or more” stringent than the federal rules/guidance.
Washington vaccine mandate may go beyond federal requirement
We expect the Governor to direct L&I to do the “or more.” But what that “or more” looks like when it comes to private business vaccine requirements is purely speculative. We have been led to believe it will apply to employers with less than 100 employees, but does that mean 50? 20? 10? 5? We do not know.
What we do know is that once the federal rule is in place, businesses with 100+ employees will need to require their employees to either be vaccinated or test negative regularly as a term of employment. Other speculative questions about what Washington might or might not do when implementing the promised OSHA rule include removing the testing option, limiting accommodations, and narrowing religious exemption language. Again the new rules filed by LNI recently do not do any of this.
BIAW has been and will continue to be actively engaged in advocating for flexibility and freedom when it comes to how individual businesses want to approach vaccines and their employees. We will also let members know when any of this changes from speculative to concrete.