President Biden Announces OSHA Will Issue a Rule Requiring Vaccinations or Weekly Testing for Companies With 100+ Employees

Labor & Employment

Yesterday, President Biden announced that the Occupational Safety and Health Administration (OSHA) will develop a rule that will require all employers with 100 or more employees to ensure that their workforce is fully vaccinated or insist that unvaccinated employees produce negative test results on at least a weekly basis. OSHA will implement this rule through an “Emergency Temporary Standard” (ETS), which does not require public input before issuance. The White House did not indicate when OSHA would release this rule, nor did it say when it would become effective. The Biden Administration believes that this vaccine mandate for employers of at least 100+ will impact more than 80 million private sector workers. Businesses that fail to comply with the to-be-announced OSHA mandates will face fines of up to $14,000 per violation.

President Biden also announced on Thursday that he has signed an Executive Order requiring all federal workers to be vaccinated and directing that this requirement be extended to employees of contractors that do business with the federal government. Further, the Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. These requirements will apply to approximately 50,000 providers and cover a majority of healthcare workers across the country. 

The rule that OSHA has been tasked to develop also will require employers with more than 100 employees to provide paid time off for employees to get vaccinated and/or to recover from any post-vaccination symptoms or complications. The specifics as to the paid time off component of the rule to be implemented through an ETS (notice requirements, maximum entitlements, overtime implications, etc.) are currently unknown. 

The President’s actions here reflect that only 63% of Americans age 12 and above are fully vaccinated, and the country is currently experiencing a surge in cases due to the spread of the highly contagious Delta variant. Any vaccination mandates certainly will need to include exemptions consistent with the Americans with Disabilities Act for those with bona fide disabilities precluding vaccination and for those with legitimate religious beliefs requiring accommodation. While legal challenges to the White House’s announced intentions yesterday will no doubt arise, employers of 100 or more and those in the healthcare sector should begin planning for the issuance of these mandates in the near future.

The White House's detailed summary is linked for convenience.

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