On September 9, President Biden announced a series of proposals intended to combat the resurgence of the COVID pandemic. Most notable about the President’s announcement was his plan to mandate that private businesses with more than 100 employees require their employees to be vaccinated or undergo weekly COVID testing.
The President intends to push this mandate through OSHA’s issuance of an emergency temporary standard. OSHA issues an emergency temporary standard under very limited circumstances. The agency must first determine that a grave danger to which workers are exposed exists, and that the emergency temporary standard is needed to provide protection from the danger. Once published in the Federal Register, an emergency temporary standard becomes effective immediately, without any opportunity for public comment. Notably, the emergency temporary standard does serve as a proposal for a permanent standard and is subject to the usual notice and comment rulemaking procedure for adopting a permanent standard, which must be finalized within six months. But, in the meantime, the emergency temporary standard is in place.
The OSHA emergency temporary standard is expected to require that employers with more than 100 employees provide paid time off for the time it takes workers to get vaccinated or recover if they are under the weather post-vaccination. For unvaccinated workers, the emergency temporary standard is expected to require that these workers produce a negative test result on at least a weekly basis before coming to work. It is unknown whether the employer or the unvaccinated worker will be responsible for the cost of weekly COVID testing, and it is also unknown whether the standard will require employers to pay unvaccinated workers for time spent getting a COVID test. Employers who do not comply with the standard, when published, will face penalties of up to $13,653 per violation. When the emergency temporary standard will be published and effective is currently unknown, but it may be as soon as a couple of weeks.
For those contractors in states with state OSHA plans, the state agency must have an emergency temporary standard that is at least as effective as federal OSHA’s emergency temporary standard, and to have it in place within 30 days of the publication of the federal standard.
Litigation is sure to follow the publication of OSHA’s anticipated emergency temporary standard. Indeed, as of the drafting of this e-blast, 24 republican state attorneys general have threatened a lawsuit over the vaccine mandate. While we wait to see what will follow the publication of this emergency temporary standard, construction employers would be wise to check with their workforce now to determine which of its employees are vaccinated. In this regard, the law does permit employers to ask whether employees are vaccinated. But the law does not permit employees to ask those employees who are not vaccinated why they are not vaccinated because that would be a violation of the Americans with Disabilities Act.
In the meantime, on the same day the President announced his intentions with regard to private employment, he also issued an Executive Order, effective immediately, which requires employees of federal contractors to be vaccinated, without a testing alternative, with an exception only for those who qualify for an accommodation.
When OSHA does publish its emergency temporary standard implementing the President’s vaccine mandate, we will be sure to provide you with the details necessary for compliance. In the meantime, if you have any questions about vaccine mandates, please contact Philip Siegel via e-mail by clicking here, or you can reach him directly at (404) 469-9197.
