A few days following President Joe Biden’s announcement of the COVID-19 vaccination or testing mandate for employers with 100 or more employees, the federal Occupational Safety and Health Administration held a webinar to discuss the initiative and answer initial employer questions about the forthcoming emergency temporary standard. Because the standard has not been written, OSHA was limited in its ability to answer specific questions. However, the agency was able to address several issues of importance to employers.
First, OSHA indicated that it will take a few weeks to draft the standard. This stands in contrast to the months it took the agency to draft the COVID-19 emergency temporary standard for health care employers. Second, the OSHA representative said that the 100-employee coverage threshold will be determined by the size of the overall employer and not the physical worksite. This means that restaurant chains and other businesses that do not employ 100 persons at each location will still be subject to the standard if their overall workforce exceeds that number. Employees who exclusively work at home will not be covered, but outside salespersons who visit customers will fall under the standard. Finally, for health care employers, OSHA said that they will need to comply with both emergency standards, but that the new one will be drafted to be compatible with measures already in place.
Apart from these tidbits, OSHA was unable to answer most employer questions, including the testing alternative, how it will be managed, and who will pay for the tests. Even if OSHA manages to draft and publish the standard in the next several weeks, there remains a good chance that the rule will be held up in litigation before it can take effect. Affected employers should keep a close eye on these developments to determine when and how they will impact their workforces.