By: Lindsay M. Massillon, Esq.
On September 9, 2021, President Joe Biden issued a series of mandates related to the COVID-19 vaccine. Among his mandates, President Biden directed the Occupational Safety and Health Administration ("OSHA") to issue a regulation requiring all employers with 100 or more employees to ensure their workforce is "fully vaccinated or require workers who are unvaccinated to undergo weekly COVID-19 testing" before entering the workplace. OSHA has the authority to implement new regulations quickly by issuing Emergency Temporary Standards ("ETS"). This mechanism allows the Agency to avoid the lengthy standard rulemaking process—a process that can take as long as eleven years. OSHA can only promulgate an ETS if the Agency can show that (1) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards; and (2) an emergency standard is necessary to protect employees from such danger. Once put in place, an ETS is only effective for six months. At the end of the six-month period, the ETS expires if it is not replaced with a permanent standard.
Of course, there have been challenges to ETSs issued in the past and some ETSs have been stayed by courts. In the nine times OSHA promulgated an ETS, courts vacated or stayed the ETS in four of those cases.
We do not know when the ETS will be issued, but employers should expect the ETS sometime in the next few weeks. President Biden also signed an Executive Order requiring most federal employees and federal contractors to get the COVID-19 vaccine and has given them 75 days to comply. OSHA's regulation is likely to provide for a similar timeline for compliance.
While we wait for the details of the ETS and prepare for potential court challenges, it would be wise for employers with 100 or more employees to seriously consider revising or implementing their COVID-19 and vaccination policies in anticipation of the new rule. Employers should work with management, human resources, and their employment legal team to determine whether to make vaccination mandatory for employees or require weekly COVID-19 testing. Similarly, employers should be prepared for employees to make requests for accommodations due to an employee's disabilities or sincerely held religious beliefs. Management should be properly educated and trained on how to identify requests for accommodation and handle or delegate to human resources as needed to avoid the risk of discrimination complaints.
 Occupational Safety and Health Administration (OSHA)" Emergency Temporary Standards (ETS and COVID-19, Updated July 13, 2021, Scott Szymendera, July 13, 2021, (https://crsreports.congress.gov/product/pdf/R/R46288), last accessed Sept. 13, 2021.
Fowler White's Labor & Employment Group is here to assist you with preparing effective and thorough vaccination and COVID-19-related policies, drafting and revising employee handbooks, compliance and documentation, and managing accommodation requests. We will continue to monitor the status of OSHA's ETS and continue updates accordingly.
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