President Joe Biden recently took several steps that will require some employers to ensure their employees are vaccinated or tested weekly for COVID-19.
These steps include two executive orders that apply to federal government employees and to employers who contract with the federal government.
The president also announced that the Occupational Safety and Health Administration will implement a temporary emergency standard. This new policy will require vaccination or weekly testing for employers with more than 100 employees.
The Ensuring Adequate COVID Safety Protocols for Federal Contractors Executive Order applies the vaccine mandate to companies that contract or subcontract with the federal government. The ordinance requires that any new federal contract or renewal, including lower level subcontracts, include a clause that the contractor or subcontractor will comply with all workplace guidelines issued by the Safer Federal Workforce Taskforce.
The task force’s new policy provides an exemption for disabilities or religious beliefs that prohibit an employee from receiving the vaccine.
The president also asked OSHA to develop a temporary emergency standard to require all employers with 100 or more employees to require vaccinations or require any unvaccinated employee to produce a negative test result at least once. per week.
It is estimated that the ETS will impact more than 80 million employees nationwide. The vaccination or testing requirement will initially be in effect for six months, until a permanent rule is determined.
During a briefing on September 10, OSHA officials said the ETS will not apply to remote workers who do not come to the workplace, but will apply to employees who do not come to the workplace. work outside the site but around other people.
Employees will be counted company-wide, not by independent site. At this time, it is not clear exactly how the ETS will be applied to companies with independent franchises.
Employers will be required to provide paid time off to allow workers to receive the vaccine or to recover from any post-vaccination side effects.
Regarding weekly testing, OSHA has not announced who will pay for weekly testing or whether employers will be required to provide paid time off for weekly testing.
However, employers are not required to allow weekly testing as an alternative to mandatory vaccination, except when required by law as a religious or medical accommodation.
Each of these accommodations is subject to different legal standards in determining whether the employer is required to provide the accommodation.
OSHA officials said they had not decided on what procedure employers should take to verify the immunization status of their employees.
Since the number of workers affected by the ETS is far greater than the number of OSHA inspectors, there may be an issue with OSHA’s ability to monitor and control compliance with the ETS.
OSHA has the ability to impose fines on employers for violating the ETS. The violation is likely to be considered “serious” or “willful” as defined by OSHA. A serious violation is punishable by a fine of up to $ 13,653, and an intentional violation can result in a fine of up to $ 136,532.
OSHA is authorized to issue an ETS with substantial evidence that employees are exposed to serious danger and the ETS is necessary to protect employees. OSHA has previously refused to issue a related ETS to all employees, and it’s not entirely clear whether it will issue an ETS as directed by the president.
At the time of going to press, at least 27 states and numerous private groups have indicated that they intend to take legal action to block the ETS.
Gov. Mike Parson has indicated he could call a special session of the Missouri legislature to make the warrants a violation of state law.
This could lead to a conflict between federal and state laws, making this situation even more difficult for employers to navigate.
Robert Petrowsky is a partner in the Estate Planning and Transactional Practice groups of Carnahan, Evans, Cantwell & Brown PC. He can be reached at firstname.lastname@example.org.