Biden announces vaccine and testing requirement for private employers with 100+ employees

McAfee & Taft

McAfee & Taft

On September 9, 2021, President Biden announced an action plan designed to curb the ongoing spread of COVID-19. With cases still surging, the president directed the Occupational Safety and Health Administration to issue an emergency rule that will require all employers with 100 or more employees to ensure that their workforce is fully vaccinated or require any workers who remain unvaccinated to undergo weekly testing and produce a negative test result before coming to work. As part of the action plan, financial penalties will apply to covered employers who do not comply.

OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement, which is expected to impact more than 80 million workers in the private sector. 

Additional action plan steps

As part of the Emergency Temporary Standard, OSHA will also implement a rule that will require private employers with 100 or more employees to provide paid time off for the time it takes workers to get vaccinated or to recover from any side effects from the vaccine. 

President Biden also signed two Executive Orders — one that requires all federal executive branch workers be vaccinated, and the other that extends this vaccination requirement to employees of any contractors that do business with the federal government, regardless of size. Additionally, the Centers for Medicare & Medicaid Services is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement. You can read more on this here.

Next steps

While the White House has said OSHA is expected to issue the Emergency Temporary Standard “in the coming weeks,” it is unknown exactly when OSHA will issue the ETS or when it will take effect. In addition, several governors have come out in opposition to the plan, and it is expected this ETS may face legal challenges.

Best practices for employers will be unknown until OSHA issues the Emergency Temporary Standard.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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