Emergency Temporary Standard on Biden Vaccine Mandate Released

Update: On Thursday January 13, the U.S. Supreme Court voted to block the Biden administration’s vaccine or testing mandate for large employers. This decision marks the end of the legal battle over the current iteration of the vaccine or test mandate. The Supreme Court overturned a decision made in December by the Sixth Circuit Court of Appeals which reinstated the mandate after it was temporarily halted by the Fifth Circuit in November.

On September 9, President Biden announced the “Path out of the Pandemic”, a set of wide-reaching regulations meant to contain the surge in cases of COVID-19 across the nation and move the country back towards normal. Amongst the announced regulations is a vaccine mandate for federal workers and contractors, healthcare workers, and employees of large businesses.

At the heart of these regulations is the directive to the Department of Labor to ensure that all businesses with 100 or more employees are either vaccinated or tested for COVID-19 on a weekly basis. This is estimated to cover over 80 million workers in the United States.

OSHA Issues an Emergency Temporary Standard

On Thursday, November 4th OSHA issued an emergency temporary standard (ETS) on the vaccine mandate. The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees from the risk of contracting COVID-19 in the workplace.) The ETS preempts existing state and local laws. Although this ETS takes effect immediately, it also serves as a proposal under Section 6(b) of the OSH Act for a final standard.

The ETS contains the following seven rules on COVID vaccinations and testing:

1. Businesses with 100 or more employees (including part and full-time employees) must require employees to be fully vaccinated by January 4, 2022. Fully vaccinated means that the employee has received one dose of the Johnson & Johnson vaccine or both doses of the Pfizer or Moderna vaccine.
2. Employees of these businesses who are not fully vaccinated by Jan. 4 have to produce a verified negative test to their employers every week.

   Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:

   • cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);

   • administered in accordance with the authorized instructions; and

   • not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

3. Employees who are not fully vaccinated must begin wearing a mask at work on December 5, 2021.

4. The rule does not require employers to pay for the tests, though in some cases agreements with unions might require employers to pay for tests for unvaccinated employees.

5. Beginning on December 5, 2021, covered employers are required to provide workers with paid time off to receive vaccinations and to recover from vaccination side effects that preclude working.

6. Penalties for noncompliance with OSHA's rule could include fines based on the number of violations and range up to approximately $13,653 per serious violation.

7. OSHA plans to carry out inspections of this rule. Employers are expected to keep documentation of their workers’ vaccination status, such as a copy of their vaccination cards or a signed and dated employee attestation.

ETS Will Allow Business to Enforce Vaccine Mandate

While the rule will allow unvaccinated employees to produce a negative test, businesses will be allowed to choose to require vaccinations for their employees if the collection of weekly negative test results proves to be an administrative burden.

For more information on the recently issued ETS, read the fact sheet issued by OSHA and visit their FAQ page for answers to the most frequently asked questions