OSHA Directed to Develop Emergency Temporary Standard for Vaccine Mandate

As part of his Path Out of the Pandemic, President Biden announced a requirement for all employers with 100 or more employees to mandate that their workers are fully vaccinated or receive a negative COVID-19 test weekly before coming to work. The order is in addition to a stipulation that most federal workers and contractors as well as most healthcare workers be vaccinated against COVID-19 without the option of regular testing instead of vaccination.

Biden tasked the Occupational Safety and Health Administration (OSHA) with developing an emergency temporary standard (ETS) to implement the requirement, supplementing the previous ETS from June which applied only to the healthcare sector. While key details about the mandate are not yet clear, including when it will take effect, employers can take steps now to prepare.

  • Encourage employees to get vaccinated to make compliance easier once the rule goes into effect.
  • Decide whether your business will mandate vaccination for all employees or allow weekly testing as an alternative. Employers unable to handle the cost of collecting and tracking tests may choose to require the vaccine without a testing option.
  • Develop administrative policies to confirm vaccinations and test results. Be sure to include guidelines for paid time off for employees to get the vaccine and recover from any side effects.
  • Expect and prepare for accommodation requests. The OSHA rule will likely affirm that employers must provide reasonable accommodation in accordance with the Americans with Disabilities Act (AD) for a refusal to be vaccinated on the basis of a medical condition or religious belief.

Once published, the OSHA ETS will take effect in 29 states where OSHA has jurisdiction. States with their own federally approved workplace safety agencies will have up to 30 days to adopt equivalent measures. The ETS will last for six months, at which time it will be replaced by a permanent standard.

Opponents of a vaccine mandate already are planning legal challenges to the ETS, although it will be in effect while such challenges are resolved. Your employment attorney can help you enact workplace policies that will protect your workers regardless. We are happy to help.

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