More than 100 Employees? Mandatory Vaccinations or Weekly Testing Soon To Be Required Under OSHA’s Forthcoming Emergency Temporary Standard

On September 9, 2021, the Department of Labor announced plans to issue an emergency temporary standard (“ETS”) requiring employers with more than 100 employees to ensure that every employee is fully vaccinated against COVID-19 or tests negative every week. Although neither the White House nor the Department of Labor has disclosed a definitive deadline, it is expected it will be issued quickly. If so, this means the ETS will most likely skip the normal public comment period from stakeholders generally required during the rulemaking process. On the contrary, the current COVID-19 ETS in health care took over six months in the regulatory process.  

The proposed ETS will apparently continue the push to incentivize vaccination by requiring employers to provide employees with paid time off to get vaccinated and to recover from any side effects. Importantly, there appears to be no mention of compensation for employees who opt for weekly COVID-19 testing and are unable to work while awaiting test results. This distinction will likely push more employers to mandate vaccines to avoid open legal issues of compensability for unvaccinated employees in these scenarios as such questions normally turn on state law.

In another unusual move, the proposed ETS is also expected to increase penalties to up to $14,000 per violation. The Administration acknowledged the proposed ETS is likely to be challenged in court, but it apparently hopes that employers will institute these mandates before the rule is either upheld or invalidated in court. It is questionable whether the Department of Labor will be able to establish that a “grave danger” exists now to justify such a rule when it opted not to issue a similar rule in the spring of this year.

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