September 10, 2021
Category: Legal Updates
Yesterday, President Joe Biden announced new vaccine requirements for federal and private sector workers in an effort to increase COVID-19 vaccinations and curb the ongoing spread of the delta variant.
One of the most expansive mandates described in President Biden’s COVID-19 “action plan” is expected to impact over 80 million workers in private sector business. Under President Biden’s direction, the Department of Labor’s Occupational Safety and Health Administration (OSHA) will issue a rule that requires large employers, currently defined as “employers with 100 or more employees,” to ensure their workforce is fully vaccinated against the coronavirus or require employees who remain unvaccinated to produce negative COVID-19 test results on a weekly basis prior to coming to work. To meet the testing requirements, President Biden will utilize the Defense Production Act to ensure industrial capacity for manufacturing and production of rapid point-of-care COVID-19 tests, including over-the-counter and at-home tests.
In addition to the vaccine and weekly testing obligations, OSHA is expected to issue a rule requiring large employers to provide paid time off to employees for the time it takes them to get vaccinated or recover from any post-vaccination side-effects.
President Biden also announced an executive order requiring all federal employees to be vaccinated against the coronavirus, with limited exceptions for medical or religious exemptions. Notably absent from the executive order is the weekly testing option. A second executive order directs the same standards to employees of contractors that do business with the federal government.
OSHA is expected to issue an Emergency Temporary Standard (ETS) to implement the vaccination, testing, and PTO requirements, but the timing remains unclear. Until OSHA actually issues these rules, many questions unfortunately remain unanswered. For example:
- How will the 100 employee minimum be counted?
- Is the weekly testing requirement for unvaccinated employees an alternative option for employees who choose to remain unvaccinated or must the employer offer weekly testing as a reasonable accommodation?
- Can an employer offer weekly testing as an accommodation but otherwise require vaccination?
- How much time will employers have to notify their workforce in order to comply with the vaccine and testing requirements?
- How long will the implementation period be?
- Who will bear the cost of weekly testing?
- May employees who choose to remain unvaccinated be required to cover the cost of weekly testing?
- For employers with union employees, will the cost of weekly testing have to be negotiated with the union?
- Will the time it takes an employee to undergo weekly testing be compensable?
- How will negative COVID-19 test results be confirmed?
- What will employees need to provide employers to confirm their vaccination status?
- How will these new rules be enforced?
- How long will these new rules be in place?
We expect the answers to these questions and more will be in the forthcoming OSHA rules. In the meantime, employers are encouraged to contact Stokes Wagner to discuss how these new requirements may impact your current COVID-19 policies and to develop a plan to bring your workforce into compliance.
We will continue to monitor this ongoing development and provide further updates as soon as additional information becomes available. For a printable PDF of this article, click here.
THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.