Vaccine Rules for Employers with over 100 Employees

First, know that none of this has been finalized yet.  We will let you know when it is.

You may be aware the Biden administration announced that OSHA will soon issue a rule that will require all employers with 100 or more employees to either ensure their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work.

Businesses will also be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects as part of the forthcoming emergency rule expected from the Occupational Safety and Health Administration (OSHA).

Here is a summary of the expected rule along with a five-step action plan you can implement immediately.

Vaccine Mandate for Employers with 100+ Employees
OSHA will issue a vaccine/testing rule that will apply to all private employers with more than 100 employees, two-thirds of the country’s workforce. This rule will take the form of an Emergency Temporary Standard (ETS), which allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present.

Employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. Although it is currently unclear, this likely means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS.

Which Employers Will Be Covered?
OSHA will be the agency responsible. Many office-based employers do not even realize they fall under this statute and are not accustomed to interacting with OSHA, including financial institutions, insurance companies, law firms, and other professional and technical work environments.

When Will the ETS Likely be Issued?
It is likely that OSHA will issue the ETS in the next several weeks. After issued, OSHA will likely strive for a timeline of 75 days before it starts enforcing the ETS.

How Long Will the ETS Last?
The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.

The 7 Biggest Unanswered Questions
The seven biggest unanswered questions for employers at this point:

Will remote employees be required to comply.  No

How will the 100-employee threshold be counted? Likely on the total number of workers employed by the company.

Will employers be required to collect proof of vaccination? Labor Department officials confirmed that information regarding collection and verification of vaccination status will be outlined in the ETS.

What type of testing will be required? It is unclear whether the ETS will mandate a particular type of COVID-19 test (antigen, PCR, etc.). While the PCR test is more accurate, it takes longer to receive the results and is more expensive.

Who Pays for Testing? On a September 10 webinar, Labor Department officials confirmed that the ETS will contain information about who bears the responsibility for COVID-19 testing costs.

Will the ETS face legal challenges?  Yes, most likely. ETS that is adopted is likely to face legal challenges. Governors of many states have already indicated that they intend to challenge any ETS. It is possible that a court could even block enforcement of the emergency rule until the legal challenges are resolved. OSHA will have to prove that there is a “grave danger” to the workers of large employees in order for the ETS to withstand a legal challenge, which may be a difficult task.

What Should You Do?  Nothing for now.  We will be in touch when more of this gets nailed down.