Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.
For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.
For now, however, here are the key takeaways for employers:
- Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.
- Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly.
- Health Care Workers: The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for over 17 million health care workers in most health care settings that receive Medicare or Medicaid. Some facilities and states have already begun to adopt hospital staff or health care sector vaccination mandates, and this action will create a consistent standard across the country.
- Large Entertainment Venues: The President’s plan calls on large entertainment venues to require proof of vaccination or testing for entry.
It is unclear when exactly these requirements will take effect and what the precise parameters of the new rule will be. We will be monitoring these developments in the coming weeks, and will post an update when more information becomes available. As we have addressed in prior blog posts, vaccine mandates inevitably come with a host of issues for employers to navigate, such as addressing disability and religious accommodation requests, proper handling of employee’s medical information, and handling employees who refuse to get vaccinated. Click below for additional information on these topics.
- COVID CONSIDERATIONS: Long COVID Now a Disability
- The New Employee Status: Vaccinated or Unvaccinated
- Vaccination: To Mandate or Not to Mandate?
- Judge Holds that a Hospital can Fire Employees Who Refuse the Vaccine
- New York Gives Employers More Time to Be a HERO
- OSHA’s Emergency Temporary Standard for Healthcare
- The EEOC’s Latest Guidance on COVID Vaccine