On Thursday, September 9th, President Biden announced a renewed attack on COVID-19 in the form of workplace vaccination mandates.
First, the President signed an Executive Order requiring federal employees and federal contractor employees to be vaccinated and eliminated the regular testing alternative. White House Press Secretary Jen Psaki indicated federal workers will have approximately 75 days to be fully vaccinated or apply for a medical or religious exemption. More stringent mandates at some federal agencies will remain.
Second, the President directed the Occupational Safety and Health Administration (OSHA) of the Department of Labor (DOL) to issue an Emergency Temporary Standard (ETS) requiring all private sector employers of more than 100 employees to mandate vaccination or regular testing of all workers.
Wasting no time, the DOL and OSHA presented a briefing and Q&A session for private sector employers the next day, Friday, September 10th. Here are the highlights:
- “As expeditiously as possible in the coming weeks,” OSHA will issue an Emergency Temporary Standard (ETS) that will require the mandatory vaccination or regular testing of all workers at employers with more than 100 employees. Employers must count all their employees regardless of location.
- The ETS will include appropriate medical and religious exemptions. How the ETS will specifically address reasonable accommodations is yet to be determined.
- OSHA already requires employers to provide reasonable time off for employees to receive vaccinations.
- The vaccination or testing mandate will not apply to employees who work strictly remotely and alone.
- The ETS will address whether “full vaccination” is required and the form of proof of employee vaccinations that employers may accept.
- The ETS will require either vaccination or regular testing, but employers will be permitted to require vaccination and not accept testing as an alternative.
- OSHA takes the position that its rules and the pending ETS are not subject to mandatory bargaining with unions, but acknowledges that “some details around the fringes” (such as disciplinary procedures not addressed by the ETS) might be mandatory terms subject to bargaining.
- There will be no public comment on the ETS. There will be an opportunity to comment if and when OSHA proposes a final rule to replace the ETS.
We will provide another update once OSHA issues this ETS.
Disclaimer: This article is not legal advice. It is provided solely for informational and educational purposes and does not fully address the complexity of the issues or steps businesses must take under applicable laws.
