EMPLOYMENT LAW UPDATE

White House requires all private-sector employers with 100 or more employees to mandate vaccination or a weekly negative COVID-19 test

By Mike O’Brien

President Biden spoke from the White House Sept. 9 to announce his new Path Out of the Pandemic Plan. Among other things, President Biden has instructed the Occupational Safety and Health Administration (OSHA) to develop rules that will require private-sector employers with 100 or more employees to mandate that their employees be vaccinated or receive a weekly negative COVID test. Employers who fail to do so will face fines. Some media outlets report that such fines could be up to $14,000 per violation. Along with President Biden’s spoken remarks, the White House also issued this statement:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.


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President Biden also has called on the Department of Labor to require all employers with 100 or more employees to provide paid time off for the time it takes an employee to be vaccinated and, if needed, to recover if they are ill post-vaccination. There is no indication yet on whether tax credits will be available to offset the cost for such paid leave.

In addition, regardless of employee headcount, OSHA will require all federal contractors to mandate vaccinations for their employees with no option for employees to receive weekly testing in lieu of a vaccination. Similarly, OSHA will require all employers in healthcare settings that receive Medicare or Medicaid reimbursement to mandate employee vaccinations, with no weekly testing option. We anticipate that such rules will include exceptions for those who cannot be vaccinated due to disability or religion.

As noted above, OSHA will develop rules to implement President Biden’s Path Out of the Pandemic Plan. We expect that those rules will have additional details, including an implementation date. Stay tuned!


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