Business Counselor September 24, 2021 Dominic T. Clolinger, Michael J. Huff

OSHA’s Pending Vaccination Rule: What Employers Need to Know About President Biden’s Planned Vaccination Mandate

On Thursday, September 9 the White House released “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan” (the “Action Plan”). The Action Plan includes numerous potential obligations for employers and leaves significant questions unanswered.

Perhaps most notably, the Action Plan indicates that OSHA will issue a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or otherwise require unvaccinated workers to produce a negative test on at least a weekly basis prior to coming to work. Once adopted, OSHA’s state counterpart—MIOSHA—will have 30 days to implement rules equivalent to or stricter than the OSHA rule. The Action Plan does not indicate if the government will provide testing resources, if employers will be obligated to pay for testing, or if employers can pass the costs of tests along to unvaccinated workers. Further, the Action Plan does not indicate the legal authority for the mandate nor the enforcement mechanisms for the mandate. It is expected that OSHA will take the position that its obligation to ensure employers provide a workplace free from serious recognized hazards authorizes it to require all employees be vaccinated or tested. Additionally, while penalties for violations are unknown at this time, typically OSHA can fine employers up to $14,000 per violation, meaning employers which refuse to require COVID-19 vaccinations or otherwise implement a testing program could face fines of hundreds of thousands of dollars.

To facilitate employees obtaining vaccinations, the Action Plan indicates OSHA will issue a rule requiring employers to provide paid time off to 1) allow workers to get vaccinated and 2) to recover from any side effects they experience post-vaccination. OSHA’s rule will not necessarily excuse employers from an obligation to bargain over the effects of the mandate with a bargaining unit. Employers should be aware that other laws may create additional obligations for vaccination mandates. For additional information on this topic, please see our article discussing vaccination policies. (Employer Vaccine Mandates Raise Legal Issues).

The Action Plan also indicates that healthcare employers receiving Medicare or Medicaid reimbursement will be required to mandate employee vaccinations, likely without a testing alternative. The Action Plan specifically notes that this requirement will apply to employees who are not involved in direct patient, resident or client care. At this time, the Centers for Medicare & Medicaid Services has not issued an emergency rule or order so the specific implementation of this requirement and penalties for violations are not yet known. A rule is expected in October.

Unsurprisingly, multiple organizations have indicated they plan to challenge the foregoing orders, creating a conundrum for employers. Employers may need to begin preparing now to comply with the orders and rules anticipated by the Action Plan without knowing if legal challenges will limit the implementation of the foregoing in the future. Employers should begin preparing by entering into a discussion about a potential vaccination policy’s purpose, scope and procedure.

Employers should contact Nikole Canute, Scott Dwyer, Nate Wolf or their Mika Meyers’ attorney to discuss how they should begin preparing to comply with the anticipated orders and rules.