White House Announces Impending Regulation to Require Vaccination or Weekly Negative COVID-19 Test
On Thursday, September 9, 2021, the White House announced an impending regulation that will require companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for COVID-19 at least once a week. The anticipated regulation would apply to more than 80 million private sector workers in the United States.
The White House explained that the Occupational Safety and Health Administration (OSHA), is in the process of developing an Emergency Temporary Standard (ETS). The use of an ETS will negate the need for public comment and ultimately expedite the entire process. The White House also said that OSHA will have the ability to fine non-complying businesses up to $14,000 per violation once the rule is in effect. The exact timeline is unknown at this point, but the ETS is expected to be finalized in the coming weeks and expected to take effect shortly thereafter.
The initial White House announcement leaves numerous questions unanswered. For instance:
- While vaccinations are free, who will pay for any needed time off from work to recover from any vaccine side effects? The existing ETS applying to healthcare employers requires the employer to bear these costs. 29 C.F.R. 1910.502(m).
- What types of tests will be acceptable? Will the time be compensable if the employee must visit an offsite testing location for a weekly COVID-19? Who will pay for the testing?
- Will this regulation override states which have passed laws against vaccine mandates?
- Will the new ETS include religious or medical exceptions?
It is likely that the ETS will be challenged after its implementation, but given how little we know about the regulation, it is unclear how successful a legal challenge would be.
In addition to this new restriction for the private sector, President Biden also issued an executive order requiring vaccination for employees of some federal contractors. The new executive order eliminates the test-out option for employees that previously existed under the President’s July 29 executive order. Now in order for employees of federal contractors to be able to test weekly in lieu of being vaccinated, they must receive a disability or religious exemption. The exact parameters of this new rule will be determined by a Safer Federal Workforce Task Force by September 24.
Butzel’s Labor & Employment team will be monitoring the situation closely and will publish additional client alerts as more information becomes available about the proposed rules.