OSHA Tasked with New COVID-19 Rule Regarding Mandatory Vaccination and Testing

in Event, Home, In The News, Employment Law, Agriculture

September 21, 2021

Faced with a new surge in COVID-19 cases, the Biden Administration on September 9, 2021, charged the Department of Labor’s Occupational Safety and Health Administration (OSHA) with the duty of executing a new Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to fully vaccinate their staff, or in the alternative, to demonstrate weekly negative COVID-19 tests for the unvaccinated.  As part of his pandemic recovery plan, this new directive followed Biden’s earlier vaccine mandates for all federal workers and employees of federal contractors.

It is unclear as of yet when the new ETS will come out and exactly what it will look like, however when the rule is drafted under emergency fast-track protocol, OSHA will have to demonstrate that employees are being protected from a “grave danger.”  OSHA was given some of the following loose parameters to work with:

  • Fines up to $14,000 per violation have been sanctioned,
  • Employers will need to compensate workers for time spent getting vaccinated, and
  • Companies will continue to have to grant vaccine exemptions for medical reasons or sincerely held religious beliefs.

Many unanswered questions loom such as which vaccines and tests are acceptable and which aren’t, who will pay for the weekly testing costs, whether testing-related time (e.g., traveling to/from testing sites, waiting/testing) is compensable, and how should employers handle employee-sought exemptions? Lawsuits seem likely in the near future, as has been hinted by various governors and other lawmakers. 
Once the new ETS is promulgated, it would take effect in the 29 states having OSHA jurisdiction. Other states such as California with its own federally approved workplace safety agency would have up to 30 days to adopt parallel measures. The OSHA rule would last six months, after which a permanent measure must replace it.

If you are a business with 100+ employees and are wondering what your next steps should be, contact McKague Rosasco LLP and we will help you roll out a vaccine policy that is compliant with the upcoming new ETS and which best fits the company’s needs.
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