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OSHA Is on the Clock to Issue an Emergency Temporary Standard on Mandatory Employer Vaccinations or Testing

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At this point, you’re probably aware that the Biden Administration’s COVID-19 Action Plan required all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Such employers must also provide PTO for obtaining vaccinations or recovering post-vaccination.

You’re probably also aware that we are all waiting for another “emergency temporary standard” (“ETS”) from OSHA to specifically implement President Biden’s mandates.

Notwithstanding the fact that the OSHA ETS has not yet been issued, it is generating a lot of questions and controversy. As we wait for its issuance, here are our answers to the top six questions we’re getting from employers:

  1. How quickly do employers need to implement these requirements? Employers do not yet need to implement the requirements of President Biden’s COVID-19 Action Plan. Rather, they should wait for issuance of OSHA’s ETS, which may come within a matter of weeks. OSHA announced it would issue, and then issued, a previous ETS limited in applicability only to the healthcare industry, within a few weeks in June 2021. Employers simply do not know what OSHA will specifically require. Thus, employers are advised to wait instead of taking anticipatory action.
  1. What should employers do while they wait for the guidance? Figure out the answer to these questions:
    • How many employees does the company have? Prepare for the ETS by calculating employees company- or enterprise-wide, but take note of issues such as whether employees are either actually employed by separate legal entities, are located at different worksites, or are working remotely. Having this information at hand will be useful to quickly take action after the ETS is issued.
    • What are the company’s current vaccination and testing requirements? Gather those policies and have them ready to share with legal counsel so you can best determine whether vaccination or weekly testing is a better approach for your employees.  
  1. Will there be an exemption on medical or religious grounds? It is likely that the OSHA ETS recognizes “legally recognized” grounds for exemption, such as disability or religion. My colleague Chris Bacon gave employers guidance last week regarding handling requests for exemption on the basis of religion.
  1. How will this overlap with guidance issued to federal contractors? OSHA’s ETS may be more restrictive than the also-forthcoming guidance that is anticipated to be issued by the Safer Federal Workforce Task Force, applicable to federal executive branch workers. If it is, government contractors with over 100 employees will be required to comply with the ETS.
  1. What if I’m in a state that has its own OSHA plan and am not subject to federal OSHA? Within 30 days of OSHA’s publication of its own ETS, a state plan jurisdiction must adopt its own ETS that is at least as effective.
  1. What if my workforce is unionized? Review your union contracts and consider when notice should be made to the union of how you will comply with the ETS. By the way, the AFL-CIO has been highly supportive of the forthcoming ETS. If employers implement a policy pursuant to the ETS that might end in discipline or discharge for failure to comply with vaccination/testing requirements, then the effects of that change in policy may be a subject of mandatory bargaining.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.