October 16, 2021

Volume XI, Number 289

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OSHA Developing Rule Requiring Employers with 100 or More Employees to Ensure Workers Are Vaccinated or Tested Weekly

On September 9, 2021, the Biden administration announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated, or require any unvaccinated employees to produce a weekly negative COVID-19 test result before coming into work. OSHA will implement this requirement through the issuance of an Emergency Temporary Standard (ETS), which ultimately may impact more than 80 million American workers.

The White House also announced that employers subject to the new rule will be required to provide paid time off for the time it takes for employees to get vaccinated or to recover if they are “under the weather” post-vaccination.

Neither the White House nor OSHA has provided any further details on this rule at this time. Many outstanding considerations remain, including:

  • An estimated date of effect for the rule.

  • Whether businesses will be required to pay for employee tests.

  • Whether businesses will be required to provide paid time off for employee testing or whether employee testing will be considered "compensable" working time.

  • Whether the government will provide tax credits or other funding to offset the costs incurred by employers in having to comply with this rule.

  • What type of tests will be acceptable for the weekly negative results.

  • The logistics for employers verifying and tracking vaccine status and test results.

  • Enforcement (although fines may be up to $14,000 per violation).

Although this rule is not expected to be implemented for several weeks, employers should begin to analyze how they will implement the new rule in their business operations. Employers with workplace vaccination mandates already in place, meanwhile, should review how their current policies and procedures may be affected by this forthcoming rule. Importantly, even after this rule is implemented, employers should still consider reasonable accommodations for employees with sincerely held religious beliefs or disabilities that prevent them from taking the vaccine.

As we expect this rule might be challenged in the courts, businesses should closely monitor the law’s status for further developments.

© 2007-2021 Hill Ward Henderson, All Rights ReservedNational Law Review, Volume XI, Number 253
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About this Author

Gordan Hill Employment Litigator Hill Ward Henderson
Shareholder

Gordon is a Shareholder in the firm’s Litigation and Employment Law Groups, and is the firm's Assistant General Counsel for Labor and Employment matters. His practice primarily involves employment litigation and counseling, as well as noncompete litigation and general commercial litigation.

In his employment practice, Gordon advises, represents and defends corporate clients in a broad spectrum of employment-related issues. Gordon has successfully defended clients in a wide variety of employment-related litigation, but...

813.222.8506
Robert A. Shimberg Commercial Litigation Attorney Hill Ward Henderson
Shareholder

Robert is a Shareholder in the firm's Litigation Group. His primary practice areas include commercial litigation, corporate compliance, cybersecurity, governmental relations and corporate investigations. He was formerly a prosecutor with the Hillsborough County State Attorney's Office.

Robert has provided compliance-related services and training to over 300 businesses around the country. He has defended businesses against consumer claims, class action lawsuits, and provided representation in connection with government agency inquiries and investigations and...

813.227.8469
Kirsten Vignec Employee Benefits Attorney HIll Ward Henderson
Shareholder

Kirsten is a Shareholder in the firm's Corporate & Tax Group and practice co-chair of the Executive Compensation & Employee Benefits Group. Kirsten’s practice involves employee benefit matters associated with the design and ongoing administration of executive deferred compensation plans, welfare benefit plans, Section 401(k) plans, profit sharing plans, and pension plans. Kirsten represents tax-exempt entities, for-profit, private, and publicly-traded companies.

Kirsten represents clients before the IRS, DOL, and the PBGC with respect to employee benefits matters.

She...

813.222.8731
Jeff Wilcox Litigation Attorney Hill Ward Henderson Law Firm
Shareholder

Jeff is a Shareholder in the firm’s Litigation Group. His practice primarily focuses on employment law, including wage-hour compliance, FMLA and ADA compliance, allegations of discrimination and harassment, non-compete litigation, and handbook and policy drafting. 

Jeff is active in both professional and Bar-related activities.  He currently serves as a Director on the Hillsborough County Bar Association, Young Lawyers Division Board, and is a member of the Employment and Labor Law Committee in the Defense Research Institute.  In 2014, Jeff received the Hillsborough County Bar...

813.222.8725
Ryan M. Guerin - Associate HWH Law complex commercial litigation labor and employment
Associate

Ryan is an associate in the firm’s Litigation group. His practice primarily focuses in the area of labor and employment. Ryan also covers an array of general and complex commercial litigation matters.

Ryan represents employers in litigation involving claims of employment harassment, discrimination, retaliation, leave laws, wage and hour laws, whistleblower laws, enforcement of and defense against non-solicitation and non-competition agreements, background check laws, and other employment-related claims. Ryan represents numerous industries, including clients...

813-222-8503
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