The Labor Department’s Occupational Safety and Health Administration (OSHA) has taken steps to move forward with President Biden’s plan to require private-sector workers to be vaccinated against COVID-19 or be regularly tested. OSHA submitted the initial text of the proposed standard to the White House for approval on Tuesday, October 12, 2021. The text has not been made public, and details could change during White House review.
In September 2021, President Biden announced a pending private-sector mandate as one of several components of a multipronged plan to fight a surge in COVID-19 cases driven by the highly contagious Delta variant. As part of Biden’s plan, his administration indicated that an OSHA regulation requiring vaccination or weekly testing would materialize under the emergency temporary standard process. An OSHA emergency temporary standard bypasses the years-long regulatory process to promulgate OSHA regulations. As a part of the OSHA emergency temporary standard process, OSHA must establish that the vaccination or testing requirement is necessary to protect workers from a “grave danger.”
OSHA has confirmed that the proposed regulation will apply to businesses with 100 or more employees, affecting roughly 80 million workers nationwide, or more than half of the total U.S. workforce. The OSHA emergency temporary standard requiring vaccination or weekly testing will provide paid time off to employees to get vaccinated and recover from any ill‐effects of the vaccine and will mandate that employees either become fully vaccinated or produce a negative test result at least weekly before going in to work.
Regulatory review by the Office of Information and Regulatory Affairs (OIRA) can sometimes take months. President Biden has called for an expedited process in relation to the OSHA emergency temporary standard requiring vaccination or weekly testing. Under an expedited process, the OIRA review could be completed in as little as a day. Once the OIRA review is complete, OSHA can publish an emergency temporary standard requiring vaccination or weekly testing in the Federal Register, which would take effect immediately. In the past, OSHA has provided businesses with a short period of time before they must comply with an emergency temporary standard. It is also expected that the emergency temporary standard requiring vaccination or weekly testing will provide a timeline for employees to receive vaccinations to be considered fully vaccinated per the regulations. The implementation might also be delayed by litigation that would not be unexpected.
Please consult experienced counsel for guidance in preparing for the OSHA emergency temporary standard requiring vaccination or weekly testing in the workplace.