The federal government announced on September 9th a COVID-19 Action Plan with a significant new vaccine requirement for employers. The plan directs the Occupational Safety and Health Administration (OSHA) to create rules for employers with 100 or more employees to mandate employee vaccination or for unvaccinated employees to show weekly testing prior to reporting.
To comply with this federal mandate, OSHA will issue Emergency Temporary Standards (ETS) to address the issue. It has been announced that this ETS will require employers to provide employees with paid time off to receive a vaccination as well as to recuperate from any side effects. Violation of these rules is punishable by OSHA for up to $14,000 per violation.
OSHA’s authority for issuing an ETS instead of proceeding through the ordinary rule-making process is limited, however. An ETS may only be issued if workers are at extreme risk of exposure to harmful substances or other new hazards, and an ETS will protect them from this danger. The ETS will act as a proposal for a permanent standard and proceed to go through the ordinary procedure for the adoption of such a standard. The only difference being that a final ruling on the adoption of the standard for an ETS should be completed within six months.
An ETS is also vulnerable to challenges in a United States Court of Appeals, and it is highly expected that this ETS will be. A particular point in this ETS that may be challenged is whether the requirement for paid vaccination leave oversteps the agency’s jurisdiction.
When OSHA’s ETS to enact these plans will be issued and what the effective date for them will be is currently unknown. Based on the agency’s previous ETS for health care employers, it could take months before it will be posted. Even after it is posted on the OSHA website, an ETS must be published in the federal register and provide an effective date. In the example of this prior ETS, it provided a date for nearly two weeks after it was posted on the OSHA website and only mandated compliance for two weeks after that. Given the agency’s past timelines, employers should have a few weeks to get ready for these new rules.
In addition to employers with greater than 100 employees, health care employers that accept Medicare and Medicaid should prepare to require vaccinations or regular testing for all employees as part of these new announcements. These new rules are bound to require considerable changes and difficult implementation so pay attention to further updates.