January 30, 2023

Volume XIII, Number 30

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January 30, 2023

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President Biden and OSHA to Require Vaccine Mandate or Weekly Testing for Employers with 100+ Employees

On September 9, 2021, the White House released a memorandum titled “Path Out of the Pandemic,” which detailed President Biden’s COVID-19 Action Plan.  The memorandum contains six priorities for combatting the COVID-19 pandemic, including a requirement that all employers with 100 or more employees must implement a vaccine mandate and/or require weekly testing of unvaccinated workers.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is in the process of developing a rule to require employers of 100 or more employees to either: (1) require an employee be fully vaccinated or (2) require an employee who remains unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  OSHA will soon issue an Emergency Temporary Standard (ETS) implementing this rule.  OSHA will also develop a rule requiring these employers to provide paid time off to employees for the time spent getting vaccinated or recovering post-vaccination.

The announcement is part of the President’s first priority, “Vaccinating the Unvaccinated”, wherein the President announced he would “us[e] regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements[.]”  Alongside the announcement of OSHA’s new rule, the memorandum also announces that President Biden has signed Executive Orders requiring all federal executive branch workers be vaccinated as well as all employees of federal contractors.

The President’s memo can be found here.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay, and other issues.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 253
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About this Author

Kevin M. Cloutier, Labor and Employment Attorney, Sheppard Mullin Law Firm
Partner

Kevin Cloutier is a partner in the Labor and Employment Practice Group and co-chair of the firm's Non-Compete and Trade Secrets Team in the firm's Chicago office. He is also a member of the Firm's Diversity and Inclusion Committee.

Areas of Practice

Mr. Cloutier’s practice focuses on all areas of labor and employment law, with an emphasis on employment-related litigation and proactive counseling of management-side clients. He is an experienced trial lawyer with first-chair trial experience before state and federal trial...

312-499-6304
Shawn D. Fabian Labor and Employment Attorney Sheppard Mullin Chicago, IL
Partner

Shawn Fabian is a partner in the Labor and Employment Practice Group in the firm's Chicago and New York offices.

Areas of Practice

Litigation

Shawn represents management-side clients before federal and state courts across the country and before administrative agencies, including the DOL, EEOC, NLRB and various state and municipal human rights commissions and labor agencies. He also regularly represents clients in arbitrations and other avenues of alternative dispute resolution.

Shawn analyzes the enforceability of restrictive...

312-499-6308
Associate

Elizabeth M. Rowe is an associate in the Labor and Employment Practice Group in the firm's Chicago office.

Areas of Practice

She has experience with contract interpretation, negligence and assumption of risk, breaches of fiduciary duty, and burden of proof.

While in law school served as an intern in the Office of Congressman Mike McIntyre and as a law clerk in the Cook County Office of the Public Defender.

312.499.6346
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