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October 15, 2021

Biden Administration Issues Covid-19 Action Plan, Including Expected Emergency OSHA Rule Requiring Employer Covid-19 Vaccine Mandates or Weekly Testing

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Key Takeaways

  • On Sept. 9, the Biden Administration issued a highly aggressive six-part COVID-19 Action Plan that includes, among other provisions, an expected emergency rule to soon come from the Department of Labor (DOL).
  • Specifically, the Occupational Safety and Health Administration (OSHA) – requiring that all employers with 100 or more employees either mandate COVID vaccines for their employees or require their employees to produce a negative COVID test before coming to work every week.
  • Additionally, the rule will require affected employers to provide paid time off for the time it takes workers to get vaccinated or recover if they are “under the weather” post-vaccination.

On Sept. 9, the Biden Administration issued a highly aggressive six-part COVID-19 Action Plan that includes, among other provisions, an expected emergency rule to soon come from the Department of Labor (DOL) - specifically, the Occupational Safety and Health Administration (OSHA) - requiring that all employers with 100 or more employees either mandate COVID vaccines for their employees or require their employees to produce a negative COVID test before coming to work every week.  Additionally, the rule will require affected employers to provide paid time off for the time it takes workers to get vaccinated or recover if they are "under the weather" post-vaccination.

Issuance of such a rule - an Emergency Temporary Standard (ETS) - by OSHA would be an immense step by the Administration to incentivize nearly 80 million private-sector workers who the Administration estimates have not yet received their first shot. Employers who fail to comply with OSHA's ETS, will likely be subject to a fine, though there are bound to be legal challenges to this part of the rule specifically, assuming it is finalized.

There are several other provisions in the Biden Administration's Action Plan which employers should be aware of, including:

  • The intention to require vaccinations for employees of contractors that do work with the federal government;
  • A plan to require vaccinations for employees at health care facilities that receive Medicare and Medicaid reimbursement;
  • Action steps to keep schools open (e.g. calling for Governors to require vaccinations for teachers and school staff and calling on all schools to set up regular testing in schools for students, teachers, and staff consistent with CDC guidelines);
  • Attempting to make testing more easily available for employers and employees to use; and,
  • Providing continued loan support and PPP loan forgiveness for small businesses.

Of course, the Action Plan raises many issues, like the impact of mandates in work environments with labor unions, and whether particular states and localities might follow the lead of this Plan to enact similar requirements for employers with less than 100 employees, to name just a few.

This is a developing story with legal implications for employers everywhere, and we certainly will provide further updates as developments arise.  If you have any questions in the interim about the impact of the Administration's Action Plan or the expected OSHA rulemaking on your workforce, please contact us or your responsible Clark Hill attorney.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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