Employer Vaccine and Testing Mandate Almost Final – Employers Face a Very Short Window of Time To Submit Proposed Rulemaking Comments

Clark Hill PLC

On Oct. 12, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) sent its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard Rulemaking (ETS) to the White House’s Office of Information and Regulatory Affairs (OIRA) for review before the rule is published and in effect. The procedure for enacting a temporary emergency regulation differs greatly from standard agency rule makings. In this case, impacted parties do not have an opportunity to review the text of the rule in advance, but they can still submit comments and weigh in on its likely construction, potential accommodations, and its anticipated impact on their business or industry before the rule is finalized.

Some employers have voiced concerns about the potential breadth of the mandate and have serious questions regarding implementation and applicability. For example, for covered employers, will the ETS apply to their remote workers? Will employers have immunity from suit if they must terminate employees who refuse mandatory vaccinations? How do employers handle accommodation requests that might appear to be at odds with health and safety mandates? What is the effect of contrary state requirements making mandatory vaccination and testing unlawful? How will employers address mass terminations or resignations for employees who refuse to comply with mandates? The questions about the ETS are numerous and most observers expect the process to be concluded quickly, so now is the time to weigh in with comments, concerns, and recommendations.

OIRA ordinarily has 90 days to review draft regulatory actions, although review is often concluded in only a few days or weeks. Here, considering the time-sensitive nature of this emergency COVID-19 rulemaking, the process is likely to play out on an accelerated timeline. Further, this rule is styled as an Emergency Temporary Standard, which means it will be promulgated without the typical notice and comment period that ordinarily allows the public to see and comment on the text of proposed rules before they are finalized. The expedited process attendant to this particular type of rulemaking underscores the need for impacted parties to weigh in now, although as with past COVID-19 ETS rulemakings, OSHA will likely also accept comments once the rule is fully promulgated and in effect.

In addition to the new ETS for employers of 100+ employees, OIRA is also currently reviewing the U.S. Department of Health and Human Services (HHS) new COVID-19 Health Care Staff Vaccination regulation. The process for this review is slightly different than for the ETS, however, it is similarly expedited. These two rules are part of the Biden-Harris Administration’s six-part COVID-19 Action Plan, which also includes new requirements for federal contractors, such as the new contract clause mandating COVID-19 vaccinations and safety protocols. The contractor rules are already in effect.

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