Hunton Employment & Labor Perspectives

Private employers with 100 or more employees will face sweeping new requirements related to COVID-19 vaccination and testing under a plan announced by President Joe Biden on September 9.

President Biden said the Occupational Safety and Health Administration (OSHA) will soon release an Emergency Temporary Standard (ETS) that will require covered employers to ensure that all employees are either vaccinated for COVID-19 or tested for COVID at least once every week before coming to work.  It is unclear when the ETS will be published, or when OSHA may begin enforcement of the rule.  Biden announced that he will use the Defense Production Act to produce 280 million tests.  Hopefully, the Biden Administration will coordinate the ETS effective date with the test production timeline so that sufficient tests will be available to meet the need created by the testing requirement.  But, employers have no assurances this will be the case.

OSHA can implement emergency temporary standards under certain limited circumstances when it determines that workers are in grave danger due to exposure to toxic substances or to new hazards and that an emergency standard is needed to protect them.  The emergency temporary standard process is an exception from the normal requirement that OSHA engage in notice-and-comment rulemaking to enact new standards.  As a result, the rule can become enforceable immediately after it is published.  OSHA previously published an ETS related to COVID-19 for healthcare employers in July 2021.

Per Biden’s announcement, the ETS will also require covered employers to provide paid time off to employees to receive their COVID vaccinations and to deal with any symptoms that occur after vaccination.  The announcement contained no reference to the manner in which the testing opt out would be administered or whether time spent testing also would be compensable time.  The ETS likely will include provisions for religious and medical accommodation, which Biden has included in the federal worker mandate.  However, we do not know whether this is designed to permit exemption from testing.  It also is difficult to predict how the ETS will handle other important issues, such as remote workers.

Twenty two states have OSHA state plans that cover private employers.  State plan states will have 30 days from the date of the federal ETS to implement their own requirements, which must be at least as effective as the federal ETS.

Hunton Andrews Kurth will continue to provide updates as additional details become available.