In an effort to curb the continuing surge of COVID-19, on Thursday, September 9, 2021, President Biden rolled out a six-pronged plan that, among other things, is intended to increase vaccination and testing, keep schools and businesses open safely, and improve the availability and quality of medical care for those with COVID-19.
As part of this plan, President Biden announced that the Department of Labor Occupational Safety and Health Administration (OSHA) will issue rulemaking in the form of an Emergency Temporary Standard (ETS) to require all employers with 100 or more employees to adopt a vaccination policy that ensures that their workforces are either fully vaccinated or test negative for COVID-19 at least once a week. Many cities and states have their own COVID-related vaccination, testing or masking requirements, which may remain in place or could change in light of the new ETS.
An ETS is an immediately-enforceable regulation OSHA is authorized to enact if there is “grave danger” to worker safety, bypassing usual rulemaking procedures and comment periods. Although there is no deadline by which OSHA must issue the ETS, the Department of Labor has indicated it will act as expeditiously as possible and anticipates issuing the ETS in the “coming weeks.” Many believe that OSHA will issue the ETS by the end of October.
With few specifics provided by the Biden administration or the Department of Labor, employers are left to speculate as to what the rule may look like and what effect it will have on employers and employees alike. Here is what the Department of Labor has stated will be included in the forthcoming mandate, although all of this is subject to change in the final published ETS:
Until OSHA issues the vaccine ETS, several issues remain open, including:
Once OSHA issues the ETS, there is no doubt that it will face legal challenges from states, employers, employee and employer advocacy groups, and more. To that end, we will all need to wait and see if OSHA will answer these key questions and whether the ETS will be enforceable in the face of these inevitable challenges.
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