What Employers Need to Know About the New Vaccine Mandate


The White House says it’s time for the unvaccinated to roll up their sleeves.  To help boost vaccination rates as the Delta variant continues to take its destructive toll across the nation, President Biden laid out a new COVID-19 action plan with some new requirements for private businesses.

How it works: The Biden administration is directing the Occupational Safety and Health Administration (OSHA) to develop a rule that will require all private sector employers with 100 or more employees to ensure their workforce is fully vaccinated and require any unvaccinated workers who remain unvaccinated to show a negative test result at least once a week.  Furthermore, the administration says it will require private employers to provide paid time off for employees to go get vaccinated.  OSHA will issue the rule through an emergency temporary standard (ETS) that will take effect immediately upon publication in the Federal Register.

This requirement is expected to impact 80 million workers in the private sector.

Can OSHA do this?  OSHA has the authority to issue an ETS if it’s been determined 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. The ETS is “necessary to protect employees from such danger.”

Remember: OSHA mandated that certain health care workers be vaccinated via an ETS issued in June 2021.

And yes, the mandate is constitutional.  In 1905, the Supreme Court ruled 7-2 to uphold a $5 fine for failing to be vaccinated against smallpox in Jacobson v. Massachusetts.  According to the high court, an individual cannot deprive his or her neighbors of their own liberty by allowing the spread of disease.

What happens next? White House Coronavirus Response Coordinator Jeffrey Zients said on September 10 that the ETS will be drafted “over the coming weeks.”  This means OSHA will release the rule much sooner than the ETS for health care workers, which was in development for six months before being published in June of this year.

What employers should do.  While OSHA spends the next few weeks developing an ETS, private businesses can do several things to be prepared.

  • Plan for potential costs, including the cost of testing and time off to be tested.
  • Prepare processes to collect vaccination information.  Put in place a system to request, collect, and maintain vaccination information, and designate a group of employees to verify evidence of vaccination status.
  • Create a testing policy.  Figure out whether your organization will offer on-site testing to workers, allow workers to self-administer tests at home, or get tested by a third party.
  • Consider a mandatory vaccine policy that goes further than the ETS and allows your business to forgo the weekly testing option.
  • Prepare for accommodation requests for employees who do not want to be vaccinated for health or religious reasons.

Prepare for enforcement.  OSHA inspections can be conducted without notice, and the agency has a robust system in place to handle whistleblower-style complaints from employees.

Get ready for lawsuits. The debate over vaccine mandates won’t end after the ETS is issued.  Arizona became the first state to file a lawsuit against the administration on September 16, and 24 Republican state attorneys general threatened to take legal action in a September 16 letter.  Still, employers should continue preparing for the new ETS as OSHA continues to move forward full steam ahead.

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