President Joe Biden’s administration is continuing its efforts to curb the COVID-19 pandemic and the spread of the deadly coronavirus Delta variant. Recently, the White House ordered all federal workers and contractors to get vaccinated against COVID-19. Now, the government is imposing a similar requirement on private employers. The move is estimated to affect over 80 million private-sector workers.
The Occupational Safety and Health Administration (OSHA) has been tasked with drafting an emergency temporary standard (ETS) and will announce more specifics in the coming weeks. Soon, employers with 100 or more employees will need to adapt their vaccine policies to comply with these new rules.
This article discusses this latest vaccination mandate, including its scope and how it may affect employers.
Note: This is a developing issue. Information will be updated in subsequent resources as more details are released.
Soon, employers with 100 or more employees (measured companywide, not by location) will need to enforce one of the following:
This flexibility allows employers to choose how strictly they want to enforce a vaccine mandate. In other words, some employers may decide to make vaccination a condition of employment; others may only require negative COVID-19 tests.
OSHA is tasked with drafting the new rule. As such, there will be few details available before OSHA publishes a definitive ETS. Meanwhile, the only pertinent information has come from short government briefings.
Here’s what’s known about the upcoming rule, keeping in mind there particulars may change in time:
Again, all aspects of this upcoming rule are subject to modification as OSHA continues to work on the details. The above information is provided to help employers understand how the government is proceeding in this area.
Much is still unknown about the upcoming vaccine requirement, and it will remain as such until OSHA publishes the ETS. Here are just some of the questions that remain to be answered:
As the list illustrates, there are many unknown factors at this time. Employers will need to stay turned for updates from OSHA as they come; however, the employers can take action in the meantime.
The vaccination mandate will come in two primary waves:
First, OSHA will publish its ETS that will include important details and enforcement guidelines. This is expected to come in the weeks ahead; however, an actual release date is uncertain. Once issued, the ETS will take immediate effect in states where federal OSHA has jurisdiction. In states where the federal government does not have jurisdiction over workplace safety, state agencies will have to either adopt the ETS or develop their own ETS within 30 days that is “at least as effective.”
An ETS can only remain in effect for six months. After that time, it must be replaced by a permanent standard, which must undergo a formal rule-making process involving a notice-and-comment period to allow stakeholders to submit feedback. This process follows the usual procedure for adopting a permanent standard except that a final ruling should be made within six months from that date OSHA publishes the ETS in the Federal Register.
In summation, employers can expect the ETS sometime within the year, but its specifics may ultimately change as the standard is finalized.
While many details are still unknown, the primary vaccination or testing requirement is definite. As such, employers can at least prepare for this aspect of the mandate. Here are some actions employers can consider when preparing for the upcoming requirement:
This list is non-exhaustive as certain consideration will be unique to individual employers.
Though the ETS will almost certainly face multiple legal challenges, employers should not count on the rule being entirely struck down and should begin preparing to comply as soon as possible.
The specifics of this latest vaccine mandate are still being drafted, so its rules may seem like a distant concern; however, these requirements will take effect quickly once they’re announced. Employers will need to act swiftly when the time comes to ensure compliance. Taking proactive steps now can help save employers from a scramble at the end of the year.
Reach out to E-COMP to discuss how this new rule may affect your business. In the meantime, stay tuned for updates as this situation develops.
This article is not intended to be exhaustive nor should any discussion be construed as professional advice.
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