On September 9, 2021, the Biden Administration announced that the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is developing an Emergency Temporary Standard that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to provide a negative COVID-19 test result at least once per week before coming to work.  Reportedly, the Emergency Temporary Standard will impact over 80 million workers in private sector businesses with 100+ employees.  You may read the announcement here: https://www.whitehouse.gov/covidplan/#vaccinate

In addition, the White House also announced that OSHA is developing an Emergency Temporary Standard that will require employers with 100 or more employees to provide paid time off to employees to get vaccinated as well as to recover from vaccination.  This requirement had previously been instituted via Emergency Temporary Standard for employers in healthcare sectors but had not yet been expanded to employers in other industries.  If issued, these will be the first mandatory OSHA standards specifically targeted at COVID-19 applying to employers outside the healthcare sector.

In response, although the details of the Emergency Temporary Standard have not yet been made public, several state governors have already vowed to go to court to challenge the constitutionality of the rules that will impact approximately two-thirds of American workers, setting the stage for one of the nation’s most consequential legal battles over public health since President Obama’s Affordable Care Act.

In any case, according to a recent Reuters’ article, more than half of U.S. companies are planning to impose COVID-19 vaccine mandates in the workplace by year-end, with almost a quarter considering vaccination as a condition for employment, according to a national survey of nearly 1,000 employers.

For some employers, these new OSHA requirements are too little too late, as many large companies have already implemented mandatory vaccine requirements, while others are wondering about the obvious follow-up questions: How would they verify a worker’s vaccination status or track the weekly tests required for workers who do not get vaccinated?  How would the rules be enforced?  What would happen to workers or companies who refused to comply?  At this point, we cannot answer any of those questions, and will not be able to do so until the full text of the Emergency Temporary Standard is made available.

What we do know is that in addition to the requirements mentioned above, the White House also announced several other actions the Biden Administration is taking to encourage vaccination, which include, among others:

An Executive Order requiring all federal executive branch workers to be vaccinated against COVID-19, without the alternative of weekly testing as had previously been offered in July;
An Executive Order directing that the above-mentioned vaccination requirement for federal employees be extended to employees of federal government contractors;
The Centers for Medicare & Medicaid Services requiring COVID-19 vaccinations for employees in most healthcare settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This expands a previously announced requirement that applied to nursing facilities; and
Calling on large entertainment venues such as sports arenas, large concert halls, and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.

At this point, there are lots of questions about the full extent of OSHA’s Emergency Temporary Standard, but we will do our best to provide updates here as soon as possible.