Yesterday, President Biden announced that he is directing the Occupational Health and Safety Administration (“OSHA”) to engage in emergency temporary rule making and issue a standard requiring employers with more than 100 employees to cause their employees to either be fully vaccinated against COVID-19 or test negative for COVID-19 on a weekly basis. The President’s directive also instructs OSHA to require private employers pay employees for the time it takes to get vaccinated. Penalties for failing to comply with the anticipated standard could subject employers to fines of up to $14,000 per violation.
The President also issued, or intends to issue, Executive Orders requiring all Executive Branch employees; employees of federal contractors, and all health care employees serving Medicare and Medicaid become vaccinated. Interestingly, the President’s Executive Orders do not cover large union-covered employees like U.S. Postal Service employees (estimated 469,934 career employees and 136,174 non-career employees) and teachers (3.2M public school teachers). It is unclear if these workers will be covered by the contemplated OSHA emergency standard.
The President’s remarks leave many unanswered questions such as who must pay for the weekly testing (i.e., insurance plans, employers or the unvaccinated employees) and whether such time spent traveling to/from testing, waiting to be tested and the testing itself is compensable for non-exempt employees.
Until OSHA issues the text of the proposed rule, it is unclear whether it will face legal challenges in Court and what specific obligations will be placed on employers.