President Joe Biden announced on September 9, 2021 a series of proposals to combat the COVID-19 pandemic more aggressively, including plans for a new rule requiring employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing. The items outlined are strategies and do not have formal regulations behind them at this point. It is expected that regulations to implement these strategies will be forthcoming over the next couple of weeks and months. Specific details on these regulations will be sent out as they are available, but we do have information which gives an idea on what could be coming our way.
The centerpiece to the President’s proposal is to require that employers with 100+ employees mandate that its employees either be fully vaccinated against COVID-19 or produce a negative test result on at least a weekly basis before coming to work. The Occupational Safety and Health Administration (OSHA) is expected to develop an Emergency Temporary Standard (ETS) to enforce this, which will be similar to the ETS that was already developed for healthcare workers. The ETS is also expected to include a rule that will require employers with more than 100 employees to provide paid time off for workers to get vaccinated or to recover if they have symptoms post-vaccination.
The definition of employees and whether or not that includes temporary, part-time or seasonal workers is yet to be known. If OSHA follows its other regulations, temporary, part-time, and seasonal workers will be part of the overall employee count. With OSHA’s electronic reporting rule, if an employer reaches over a certain number of employees at one location at any time throughout the year, they must comply. It is possible OSHA will use that same logic with this ETS.
Federal employees and contractors will have about 75 days to get fully vaccinated from the time the executive order is signed, officials said. The vaccine requirement will include exemptions for individuals with disabilities and for those who refuse the vaccination on religious grounds.
In all, the new mandate will cover about 100 million workers, or two-thirds of all workers in the U.S. The executive orders and administration response come as the country is experiencing a rise in COVID-19 infections. The U.S. is recording roughly 150,000 new cases of the virus and about 1,500 fatalities a day, up from an average of 300 deaths each day just a few months ago. There are around 80 million Americans eligible to be vaccinated who have not yet gotten their first shot.
If you have any questions or concerns on how the new mandates will affect you and your business please contact the attorneys at Rock Fusco & Connelly, LLC.