The vaccine mandate will be enacted through a forthcoming rule from the Department of Labor and its Occupational Safety and Health Administration (OSHA) and will carry penalties of $14,000 per violation. It also will require companies to provide paid time off for vaccination. These new requirements are estimated to cover approximately 100 million workers.
“Some of the biggest companies are already requiring this — United Airlines, Disney, Tyson Foods and even Fox News,” President Biden said, “We’re in a tough stretch, and it could last for a while.” Criticizing the tens of millions of Americans who are not yet vaccinated, despite months of availability and incentives, he added: “We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us.”
OSHA has the authority to issue such a rule, known as an emergency temporary standard or ETS, if it can show that workers are exposed to a “grave danger” and that the rule is necessary to address that danger. The rule must also be feasible for employers to enforce. Such a standard would pre-empt existing rules by state governments, except in states that have their own OSHA-approved workplace agencies — about half the states in the country. States with their own programs will have 30 days to adopt a standard that is at least as effective and that must cover state and local government employees.
The proposed ETS likely will be designed to incentivize vaccination by requiring employers to provide employees with paid time off to get vaccinated and to recover from any side effects. President Biden’s remarks did not address whether employers also will be required to compensate employees who opt for weekly testing and may be unable to work while awaiting test results.
The mandate is certain to face political pushback and litigation as well as considerable challenges in enforcement, including the need for a way to gather and store employees’ vaccination information and to establish a process for exemptions. The President did not specify whether these burdens will fall on individual private employers, nor whether or how the federal government may assist. It is also unclear whether the new mandates will apply to all company employees or only to those who work non-remotely in company offices or facilities.
The mandate on private employers is just one component of President Biden’s new “action plan” to confront the COVID-19 surge that is being driven by the spread of the delta variant. Key parts of the plan include:
In short, although there are still some unanswered questions about the logistics and timing of the implementation of the new vaccination and testing mandate, employers should begin contemplating steps they may have to take to comply. Employers may want to assess whether their employees are vaccinated or plan to be, to the extent they have not done so already. Employers also should check OSHA’s website regularly for the new pronouncement.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Teri Sherman is a partner in the litigation department at Klehr Harrison.