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.  

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In the absence of any grave danger, OSHA still issues a COVID-19 Emergency Temporary Standard but limits its coverage to healthcare and provides new guidance to all other employers

On May 26, 2021, we told our readers that we thought that although an “emergency” no longer existed about OSHA’s need to regulate employers’ handling of the COVID-19 virus, OSHA would nonetheless still issue an emergency temporary standard (ETS) due to immense political pressure on the Department of Labor (DOL) from numerous labor organizations and other “workplace safety” advocacy groups. We also stated in our earlier blog that we believe that any ETS issued would most likely address the exposure risks and hazards faced by employees and employers in the healthcare industry. Well, yesterday, that prediction came true as OSHA finally issued its “emergency” standard despite overwhelming evidence that the “grave danger” required by the Occupational Safety and Health Act to allow the DOL to issue a temporary emergency standard no longer exists.

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Are We Ever Going To See A COVID-19 ETS And, If So, What Will It Look Like? My Meeting With The White House This Week Didn’t Reveal Much

The one question on everyone’s mind is when, if ever, will employers learn whether OSHA will actually issue the COVID-19 Emergency Temporary Standard (“ETS”) that OSHA delivered to the White House’s Office of Management and Budget’s (“OMB”) Office of Information and Regulatory Affairs (“OIRA”) at some point in late April or early May to the general public. OIRA is required to engage in regulatory oversight under Executive Order 12866 and, as part of that oversight, has been conducting “listening sessions/meetings” with stakeholders. Many of us anticipated that we would have seen these meetings conducted and completed now, given this action’s “emergency” nature. 

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To Mask or Unmask; that is the Question

Every business in the United States has been asking itself these past few days whether to drop any requirements it may have for visitors or employees to wear face masks since the CDC changed its COVID-19 guidance related to masks and physical distancing for individuals who are fully vaccinated on May 13. It seems that national retailers are announcing every hour the past few days that “fully vaccinated” individuals, including their employees, will no longer be required to wear a mask before entering their stores. 

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An Infectious Disease Prevention Plan and Workplace Safety Committee: Two New Significant Requirements Under New York’s HERO Act

On May 5, 2021, Governor Cuomo of New York signed the New York Health and Essential Rights Act (the “Act”) into law which amends the New York Labor Law. The Act creates occupational safety and health standards in the private sector for all airborne infectious diseases, including but not limited to COVID-19. While some of the Act’s obligations on New York employers are responsive to general concerns surrounding return-to-work during the COVID-19 pandemic, there are significant additional obligations. Such as developing an airborne infectious disease exposure prevention plan and creating a joint employer-employee workplace health and safety committee.

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OSHA’s COVID-19 ETS Expected Soon – Too Little, Too Late?

On April 26, OSHA sent its COVID-19 emergency temporary standard (ETS) to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. OIRA is the regulatory “gatekeeper” that is required, under various executive orders, to review proposed rules from agencies before their release. Based on this action, it is expected the ETS’s could take effect within the next two weeks and there is speculation that it includes separate requirements for higher risk industries such as health care and other requirements for non-health industries.  

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Adverse Vaccine Reaction: An OSHA Recordable Event or Not?

As more businesses reopen without restrictions and increased availability of vaccine supplies, many employers contemplate a mandatory vaccine policy. The decision turns on individualized facts to each organization, such as the employer’s size, the industry, the nature of the employee’s duties, and the administrative burden and similar considerations that follow a mandatory policy. Many employers are reportedly also considering or offering “incentives” to employees to persuade them to receive the vaccine, even if not requiring them to do so.

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Why was OSHA’s COVID-19 Emergency Temporary Standard Placed in “Limbo” by Secretary of Labor Walsh?

On January 21, 2021, President Biden signed an executive order directing OSHA to consider issuing an Emergency Temporary Standard (“ETS”) related to COVID-19. If the ETS is deemed necessary, the executive order instructed OSHA to issue it by March 15, 2021. Now, nearly three and a half weeks past that date, the ETS has just been placed on “hold” by Secretary of Labor Marty Walsh.

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