Manatt, Phelps & Phillips, LLP

 

OSHA to Issue Rules Requiring Employers With 100+ Employees to Ensure That Their Workers Are Vaccinated or Tested Weekly

On September 9, 2021, President Biden announced a new COVID-19 plan, aimed to control the spread of the Delta variant and increase vaccination rates nationwide. President Biden seeks to achieve these goals through a combination of executive orders and new federal rules.

As part of this new plan, the Department of Labor’s Occupational Safety and Health Administration (OSHA) is expected to issue an Emergency Temporary Standard requiring all employers with 100 or more employees to:

  • Ensure that their workforce is fully vaccinated; or
  • Require unvaccinated workers to produce negative COVID-19 test results at least once per week before coming to work.

Employers with 100 or more employees will also be required to provide workers with paid time off for the time that it takes to get vaccinated and/or to recover from vaccine side effects. These new requirements are expected to impact more than 80 million workers in the private sector.

Because OSHA has yet to issue the rule, the exact details thereof remain unknown. However, Manatt is closely monitoring developments related to President Biden’s announcement and will continue to provide information and insights as they become available.

President Biden Announces Extension of Federal Vaccination Requirements

The President also announced that the existing vaccination requirement applicable to federal workers will be extended to:

  • Employees and contractors that do business with the federal government; and
  • Workers in Medicare/Medicaid-participating health care settings, including, for example, hospitals, dialysis facilities, ambulatory surgical settings, home health agencies, nursing facilities and other workplaces regulated by the Centers for Medicare & Medicaid Services. This group includes all individuals who work in such settings, whether clinical staff, volunteers or those who are not involved in direct patient, resident or client care.

California Shelves a Proposed New Law to Require a Similar Mandate Statewide

While the Biden Administration was developing its new vaccination or regular testing mandate, the authors of similar mandates in California set aside their proposals until at least 2022.

Two Bay Area Assembly Members, Evan Low (D-Campbell) and Buffy Wicks (D-Oakland), had surfaced different forms of a vaccination mandate in recent weeks. Both set aside their proposals for the year, however, when it became clear that neither could gain legislative approval before the September 10, 2021 adjournment of the state legislature.

Assembly Member Low’s proposal drew particular interest because it was negotiated with labor and business interests and was to include a provision in state law expressly permitting businesses to require their workers to be vaccinated, thereby providing employers with express legal authority to impose a mandate. Currently, businesses in California largely rely on federal and state public health orders and related guidance as authority for imposing mask, testing or vaccination mandates. Assembly Member Low’s proposal would have removed any question about an employer’s authority to impose a mandate and, at the same time, would have significantly reduced the risk of litigation against employers who impose a mandate.

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