President Biden and OSHA to Require Vaccine Mandate or Weekly Testing for Employers with 100+ Employees

Sheppard Mullin Richter & Hampton LLP

On September 9, 2021, the White House released a memorandum titled “Path Out of the Pandemic,” which detailed President Biden’s COVID-19 Action Plan.  The memorandum contains six priorities for combatting the COVID-19 pandemic, including a requirement that all employers with 100 or more employees must implement a vaccine mandate and/or require weekly testing of unvaccinated workers.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is in the process of developing a rule to require employers of 100 or more employees to either: (1) require an employee be fully vaccinated or (2) require an employee who remains unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  OSHA will soon issue an Emergency Temporary Standard (ETS) implementing this rule.  OSHA will also develop a rule requiring these employers to provide paid time off to employees for the time spent getting vaccinated or recovering post-vaccination.

The announcement is part of the President’s first priority, “Vaccinating the Unvaccinated”, wherein the President announced he would “us[e] regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements[.]”  Alongside the announcement of OSHA’s new rule, the memorandum also announces that President Biden has signed Executive Orders requiring all federal executive branch workers be vaccinated as well as all employees of federal contractors.

The President’s memo can be found here.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay, and other issues.

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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