By Alex Ayers, Executive Director, Family Business Coalition
President Biden announced several Executive Orders and released a plan designed to increase vaccination rates of eligible Americans. Among the orders is a directive to the Occupational Safety and Health Administration to develop an emergency rule creating a new employer vaccine or testing mandate. This emergency rule will apply to all businesses with more than 100 employees and require employees to either get vaccinated or have weekly testing of unvaccinated employees. Until the emergency rule is put in place there is no federal requirement for vaccination on most industries.
OSHA’s timing for release of the emergency rule has not been announced and how quickly the agency releases the rule will likely impact future court cases on the requirement. The released plan from the White House did include details of what will be in the emergency rule, but additional details could be added by OSHA:
- Requirement impacts businesses with more than 100 employees
- Requires employers to either mandate vaccination of employees or weekly testing of unvaccinated employees
- Requires employers to provide time off to get vaccinated and recover from any vaccine side effects (Paid leave can be reimbursed using COVID-19 tax credits, read more here)
In addition to requiring OSHA to write emergency rules for private sector employers, the White House also announced two Executive Orders that will apply to federal executive branch workers and federal contractors working on federal property. These Executive Orders will require anyone working on federal property to be vaccinated before October 15. The federal contractor Executive Order will only impact NAED members that are federal contractors or work with federal contractors if their work goes beyond delivery of product to a federal facility; any subcontractor that deals solely with the provision of products is exempt from the vaccine requirement.
NAED will continue to monitor the development of the emergency rule and provide updates as they are available.
Update 9/10 5:00 PM:
At 4:30 PM OSHA hosted a webinar to talk about the upcoming Emergency Temporary Standard (ETS). The webinar was attended by over 2,000 interested parties and caused the software to glitch multiple times. OSHA staff are working to get the standard out “within the coming weeks” but would not narrow down the timing any further. Other information shared by OSHA:
- The vaccine/testing requirement will not apply to remote workers who do not come in contact with other employees.
- OSHA is encouraging businesses to implement vaccination programs prior to the ETS being published and will not say if a single dose of the vaccine is enough to declare an employee vaccinated for purposes of meeting the requirement
- The 100 person threshold applies to the entire company not to single locations
- Employers are allowed to require vaccination of employees in order to avoid testing, however they cannot require vaccination of employees who are medically or religiously exempted from getting the vaccine
- OSHA has not determined how weekly testing will need to be paid for, if the full cost will be on the employer or if government funding can be used
- OSHA will not rule on whether an employer can fire an employee for not getting vaccinated because of this ETS