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By: Jacob McClendon
On September 9, President Biden announced that the Occupational Safety and Health Administration (“OSHA”) will develop an emergency rule requiring private businesses with 100 or more employees to require their employees to be fully vaccinated or to produce a negative test result at least once a week. This will be a sweeping rule that is projected to affect over 80 million workers in the United States, provided that it withstands anticipated legal challenges.
While President Biden has announced the plan, employers should initially take a deep breath as we do not anticipate the proposed rule to be announced by OSHA until late September 2021 (at the earliest). Even then, we anticipate that OSHA will give employers at least 60 days to comply with the vaccine or testing mandate. As a result, while President Biden’s plan has triggered a lot of immediate concern and speculation, we believe there will be some opportunity for interested parties to chime in on the scope of the proposed rule and possibly flesh out answers to some of the more pressing questions surrounding the application of the rule.
In addition to mandating the vaccine or testing, the proposed rule also will:
Because the proposed rule is still being developed, it is silent on several critical questions. Foremost among them is whether employers will be expected to pay for tests and how quickly they will be expected to ensure their employees comply with the rule. The answer to the first question is unclear, although President Biden’s COVID Plan notes it is expanding free pharmacy testing and working to make at-home tests available at cost. As a result, employers may be able to require employees to utilize either rapid or PCR tests available for free at pharmacies or purchase more affordable at-home tests.
As to the second question, the White House has said the rule will give employees sufficient time to get vaccinated before taking effect. Press Secretary Jen Psaki indicated that federal employees will have 75 days to be fully vaccinated as part of President Biden’s executive order requiring all federal employees to be fully vaccinated. OSHA’s upcoming rule may provide a similar timeframe. It also is unclear whether employees who are working remotely or are on an extended leave of absence will be covered by the mandatory vaccination policy.
It appears that OSHA will rely on the powers established in 29 U.S.C. § 655(c), which permit it to issue emergency rules when it finds that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful. There is little doubt that the rule will face legal challenges. If so, legal challenges likely will focus on whether or not COVID-19 constitutes a “substance or agent” and on whether a “grave danger” has been established based on evidence of actual, prevailing industrial conditions. See Public Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1156-57 (D.C. Cir. 1983).
Notably, President Biden’s announcement did not explain how religious and disability-related exemptions will be handled. Guidance from the Equal Employment Opportunity Commission requires employers to offer religious exemptions for people with sincerely held religious beliefs under Title VII of the Civil Rights Act and disability exemptions for qualified individuals under the Americans with Disabilities Act. While it is unclear if OSHA’s proposed rule will address these scenarios, employers should ensure their vaccine and testing policies account for these exemptions.
While there is some time before OSHA issues the rule and the vaccine and testing mandate go into effect (assuming the mandate survives legal challenge), we do think it makes sense for employers covered by the anticipated rule to open a dialogue now on how to navigate the implementation of the rule. Please do not hesitate to reach out to your FMG attorney for advice regarding the proposed rule.