Still A Lot Of Questions On U.S. Vaccine Mandate For Employers

As Connecting the Dots reported two weeks ago, U.S. President Joe Biden has asked the Occupational Health and Safety Administration (OSHA) to write an Emergency Temporary Standard (ETS) that will require all businesses with 100 or more employees to either ensure their workforce is fully vaccinated or to require workers who remain unvaccinated to produce a negative COVID-19 test once a week. Companies that are federal contractors would have to require employees to take the vaccine as a condition of employment — there would be no testing option.

MSCI has been informed that OSHA has begun the process of developing a rule and new ETS and could issue a draft regulation within the next month. There will be no public comment period or stakeholder involvement as they develop the rule, and the ETS will take effective immediately in states where OSHA has direct jurisdiction. (There are 22 states with state OSHA plans covering both public and private sector employers. Each of these states, listed here, will have 30 days to implement the rule or an equally stringent one of its own.)

Stakeholders will have an opportunity to comment on the ETS after it is published in the Federal Register and will be able to submit comments that will help shape a final OSHA rule that will replace the ETS. The regulation replacing the ETS will be issued six months after the ETS takes effect.

MSCI also has been informed that:

• The ETS testing/vaccination requirement will not extend to remote employees who are physically isolated from co-workers;
• Employers will need to provide employees with paid time off (PTO) or allow employees to use existing PTO to obtain vaccinations and to recover from vaccination side effects; and
• The 100-employee threshold for coverage applies to the employer as a whole, not just a single worksite.

There are many unanswered questions, however, including:

• Who will pay for the COVID testing for employees who decline to get vaccinated?
• Businesses will be fined $14,000 per violation of the ETS. How will this fine work?
• How will employers be expected or allowed to verify vaccinations and tests?
• Will the rule specify what level and type of vaccine will satisfy the mandate?
• Will there be procedures for handling employees who refuse to vaccinate or test?

Stay tuned to Connecting the Dots for up-to-date information on the ETS. For more information, the law firm Kelley Drye has explained the proposed ETS here while MSCI member company Optimum Safety Management has information here.