On Sept. 9, 2021, President Biden announced that the Occupational Safety and Health Administration will create an emergency temporary standard (rule) for private businesses with 100 or more employees that will require their employees to be fully vaccinated against COVID-19 or undergo weekly COVID-19 testing. Since the rule will be enacted as an emergency temporary standard, it will avoid the mandatory public comment period and will be reviewed on an accelerated timeline. President Biden also announced that all federal government employees and contractors will be required to be fully vaccinated, along with many health care workers.

Although the new OSHA rule is not yet published, employers with 100 or more employees, federal contractors, and other employers that may be covered by the OSHA rule should consider the following now:

1. Notify employees of the vaccination/testing requirement. Proper notice provides unvaccinated employees sufficient time to either become vaccinated or produce a weekly negative COVID-19 test in order to remain employed. The notice should advise employees that failure to comply with the requirement may lead to disciplinary action, including separation from employment.
2. Who will pay for testing? Employers should ask themselves now whether they will cover the cost of testing for employees who refuse to become vaccinated or if they will push that cost onto their employees. Some employers may want to forgo paying for testing as a method for encouraging vaccinations. Other employers may feel otherwise. This is a particularly relevant question for employers with substantial numbers of part-time employees, who may not be eligible for health insurance benefits. Employers should also be mindful of the wage and hour implications if they require employees to pay for regular testing, especially for non-exempt employees, as well as potential employee benefits issues. In addition, the president's remarks suggested that the new OSHA rule will require employers to provide paid time off for employees to become vaccinated—something that is required by a number of local jurisdictions.
3. Develop an exemption policy. The president was silent about religious and medical exemptions, likely because the forthcoming OSHA rule will not necessarily require vaccinations. That is, employers can require weekly testing as an alternative. Nothing prevents an employer from going a step further, however. Employers are permitted to require vaccinations for employees, so long as the employer permits exemptions for medical conditions and sincerely held religious beliefs or practices. For more information on those exemptions, please see our prior client alert here.
4. Will the new OSHA rule hold up in court? Time will tell. The executive branch has broad powers to regulate workplace safety, but the rule as described raises thorny legal and practical issues, including its effect in states that have an approved OSHA state plan. Legal challenges to the OSHA rule are expected and the governor of one state with a state plan has vowed to strenuously resist the rule.

CE will continue to monitor developments for the forthcoming new OSHA rule.

This article is a reprint from Venable LLP.