On September 9, 2021, the White House announced its new
COVID-19 Action Plan, which is likely to have a considerable impact on employers. As part of the plan, President Biden has directed the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue a new rule that requires private employers with 100 or more employees to either mandate the COVID-19 vaccine or require weekly COVID-19 testing for all employees. While this mandate has not taken effect quite yet, according to the White House’s official press release, it is already being developed by OSHA.
The new rule will include two key components for private employers, including those in the construction industry. First, covered employers will need to “ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” Second, covered employers will need to “provide paid time off for the time that it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.” Neither the White House nor OSHA have provided any additional guidance on exactly how these requirements will be enforced or implemented once they go into effect. Instead, OSHA will release additional guidance in the form of an emergency temporary standard that will implement the new rule.
As we wait for additional guidance from OSHA, it is important to note that numerous states previously enacted legislation to limit or preclude private employers from mandating the COVID-19 vaccine or taking adverse action on employees who refuse to get vaccinated. Therefore, it is likely that both President Biden’s COVID-19 Action Plan and OSHA’s forthcoming emergency temporary standard will be subject to legal challenges across the nation. At this time, it is unclear how those legal challenges will ultimately shake out, but Cohen Seglias is closely monitoring the situation and will continue to provide updates as more information becomes available, including from the White House and OSHA.
