As part of the White House’s COVID-19 Action Plan, President Joe Biden announced his intent to impose new workplace safety requirements on employers with 100 or more employees. Compliance may require employers to either ensure their employees have the COVID-19 vaccine or require workers to provide proof of a negative COVID-19 test on a weekly basis.
President Biden directed the Occupational Safety and Health Administration (OSHA) to implement and enforce an updated Emergency Temporary Standard (ETS) with these new terms. The announcement of this new requirement came on September 9, 2021, and OHSA is still in the process of circulating a proposed ETS amongst other federal administrations.
The timeline for when the COVID-19 vaccine mandate for private employers will be effective is unclear. Most recently, OSHA submitted a proposed rule to the Office of Information and Regulatory Affairs (OIRA) for a final review on October 12, 2021. OIRA’s review could take a couple of months (or less if the administration expedites the process by forgoing comments from key stakeholders).
Afterward, OSHA would likely seek public comment before publishing a final rule with the Federal Register. As is common with new agency rules, OSHA may provide a brief grace period for employers to become compliant once the rule is effective. Additionally, possible legal challenges from private employers or state attorney generals could further delay or prevent the effective date of the ETS.
The current penalty for an OHSA violation is a little less than $14,000 per violation that can repeat if the offending employer does not remediate the situation. Additionally, more excessive fines exist for willful violations. However, a draft bill currently circulating the chambers of Congress could significantly increase OHSA fines if the legislature passes it. The new bill language could increase the fine to $70,000 for a single violation and up to $700,000 for willful and repeated infractions. These increased penalties could have huge implications for companies who are not prepared to address vaccine mandates.
As an employer, preparing for OHSA’s future rule on COVID-19 vaccine mandates and other safety procedures may be difficult. Without clear guidance from a formal rule, creating a policy or otherwise acting on the news of the rule could be premature. For example, we don’t know if any exceptions or limitations may apply to this proposed mandate. Some issues that might raise questions about the applicability of the ETS to a potential employer may include:
However, employers should still be mindful of how the proposed ETS may apply to them and their staff in the future. This may include reviewing current headcounts of employees along with their classification (e.g., part-time, or full-time). Reviewing remote work options, vaccine testing costs, and other strategies could also help prepare an employer for complying with the future ETS.
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