On September 9, President Biden announced proposals for more aggressive action against the spread of Covid-19. Those proposals consist of 3 primary measures: (1) an executive order mandating vaccines for all federal employees and contractors; (2) an order mandating vaccines for health care workers in settings that receive Medicare or Medicaid reimbursement; and (3) OSHA regulations requiring employers with at least 100 employees to require employees to be vaccinated.
OSHA is in the process of preparing an emergency temporary standard (ETS) specifying the details of its requirements. We anticipate that the ETS will be issued in the next 30-60 days. By contrast with the rule concerning healthcare workers, the pending OSHA rule will allow private sector employers the option of either mandating vaccinations or requiring employees to produce a negative Covid test each week. In the meantime, there are several unanswered questions about what the ETS will provide.
Those private, non-healthcare employers which will have the option to offer the weekly testing must keep in mind that they will be required to pay for any amounts not covered by insurance for those tests. In addition, they must pay nonexempt employees for the time spent undergoing testing during the workday. Collecting and tracking the weekly test results also might be burdensome. On the other hand, employers will be required to provide paid time off for employees to get vaccinated and to recover from any side effects.
Another issue with the mandatory vaccinations will be the requirement to provide reasonable accommodations for employees who claim legitimate exemptions for medical reasons or sincerely held religious beliefs. An accommodation is considered reasonable if it does not cause undue hardship on the employer. Those exemptions can sometimes be difficult to navigate.
Although we do not yet know when the OSHA rule will go into effect, we are expecting legal challenges to it. OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:
- Employees are exposed to grave danger from the hazard, and
- The ETS is necessary to protect employees from that danger.
In the meantime, employers should begin planning based on the assumption that the new rules will go into effect.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.