Last Thursday, September 9th, President Biden announced a series of more aggressive proposals in his Path Out of the Pandemic plan to continue the fight against COVID-19. The plan, most notably, includes a new rule that calls employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing.
The Administration is asking the Department of Labor's Occupational Safety and Health Administration (OSHA) to develop an emergency temporary standard, directed at private-sector businesses with 100+ employees. As it currently stands, employers will also have to provide employees paid time off to get vaccinated or as they recover from any vaccine side effects. The requirement for large companies to mandate vaccinations or weekly testing for employees will be enacted through the forthcoming OSHA rule that could carry penalties of up to $14,000 per violation.
The order also intends to require vaccination for federal workers and contractors, as well as for 17 million health care workers in hospitals and other institutions that receive Medicare and Medicaid funding. In all, the new mandate is expected to impact more than 80 million workers.
OSHA has the authority to quickly issue a rule, known as an emergency temporary standard if it can show that workers are exposed to grave danger and that the rule is necessary to address that danger. The rule must also be feasible for employers to enforce. Such a standard would pre-empt existing rules by state governments, except in states that have their own OSHA-approved workplace agencies — about half the states in the country. States with their own programs have 30 days to adopt a standard that is at least as effective, and that must cover state and local government employees. Federal OSHA rules do not cover state and local government employees.
At this time, there are no additional guidance or enforcement requirements issued by OSHA or the Department of Labor. Employers, at the time of this release, are not required to modify their procedures and are encouraged to continue to review and follow the most current employer guidance, which can be found on the OSHA website. Healthcare-specific organizations should refer to the Emergency Temporary Standard (ETS).
We also expect there to be some degree of challenge by employers and some states, however encourage our private-sector clients to consult their legal counsel to consider a mandatory vaccine policy that includes exemptions for people with qualified disabilities or who hold deep religious beliefs.
SISCO will continue to monitor updates, and as formal guidance or any new information is announced, we will share promptly.