On Thursday, September 9, 2021, President Joe Biden announced that within the next few weeks, the Occupational Safety and Health Administration (OSHA) will be issuing and implementing a standard requiring employers with 100 or more employees to require their employees to be vaccinated against COVID-19 or undergo testing at a minimum of once per week. This article will address what employers must do under the standard and what they could potentially face for non-compliance.
The expected standard was initially mentioned by Press Secretary Jen Psaki early Thursday and was then confirmed by President Biden later that afternoon. Biden stated that OSHA has been directed to develop an emergency standard, only to remain in affect temporarily, that will require vaccination or alternatively regularly scheduled testing. However, the standard will only affect employers with 100 or more employees.
Employers are also required to provide unvaccinated employees with time off in order to get the vaccine and recover from any subsequent side effects. Over 80 million employees of private employers will be affected once the standard is released. The review process will be expedited due to the severity of the COVID-19 pandemic and increasing concern over the Delta variant and potential future variants. Once the standard is published, which is expected to occur in the next few weeks, it will go into effect shortly after. There was no specified date of when the standard will be released.
Once the standard goes into effect, employers who do not comply could face serious fines. OSHA will be able to fine businesses up to $14,000 per violation. Currently, it is unclear what will be considered a “violation.” Potentially, employers could face fines for each unvaccinated employee they allow to work without undergoing the required testing or for each day when at least one unvaccinated and untested employee is allowed to work.
Previously, OSHA has previously preferred for employers to fund safety-related initiatives for their employees. Although President Biden stated that unvaccinated employees will get time off to get vaccinated, he did not address if those who choose not to get vaccinated will have time off for weekly testing, or if it must be done on their own time. In this case, OSHA may place this burden on employees in order to push the initiative to get more individuals vaccinated, as intended by the Biden Administration.
The mandate has already come under criticism by politicians, employers, and even individuals. It can be expected that claims will be made regarding the constitutionality of the mandate which could possibly go as far as the Supreme Court.
What Employers Have Already Implemented
With the ever-changing regulations due to COVID-19, employers have had many questions on how to go forward while keeping their employees and clients safe. Based on many factors, like number of employees, person-to-person interaction, size of the workplace, and more, there have been many mixed approaches employers have taken over the past few months that they think work best for their organization.
Some of these approaches include (1) mask wearing for only non-vaccinated employees; (2) mask wearing for all employees regardless of vaccination status; (3) requiring only new employees to be vaccinated with unvaccinated current employees wearing masks; (4) requiring all employees to be vaccinated; (5) some combination of vaccination and mask wearing requirements. Although the expected standard is only intended to affect employers with 100 or more employees, individual states are still able to enact stricter standards which could potentially include employers with less employees, depending on what states choose to do.
The expected standard should be coming into effect shortly and employers with more than 100 employees need to be prepared to implement the standard or face costly fines. Due to the significant issues involved with vaccination policies, please feel free to reach out to us for guidance.