October 20, 2021

Volume XI, Number 293

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October 19, 2021

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October 18, 2021

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Quick Reaction: Biden’s Announcement on COVID Vaccination and Testing for Private Employers

Private employers with 100 or more employees will face sweeping new requirements related to COVID-19 vaccination and testing under a plan announced by President Joe Biden on September 9.

President Biden said the Occupational Safety and Health Administration (OSHA) will soon release an Emergency Temporary Standard (ETS) that will require covered employers to ensure that all employees are either vaccinated for COVID-19 or tested for COVID at least once every week before coming to work.  It is unclear when the ETS will be published, or when OSHA may begin enforcement of the rule.  Biden announced that he will use the Defense Production Act to produce 280 million tests.  Hopefully, the Biden Administration will coordinate the ETS effective date with the test production timeline so that sufficient tests will be available to meet the need created by the testing requirement.  But, employers have no assurances this will be the case.

OSHA can implement emergency temporary standards under certain limited circumstances when it determines that workers are in grave danger due to exposure to toxic substances or to new hazards and that an emergency standard is needed to protect them.  The emergency temporary standard process is an exception from the normal requirement that OSHA engage in notice-and-comment rulemaking to enact new standards.  As a result, the rule can become enforceable immediately after it is published.  OSHA previously published an ETS related to COVID-19 for healthcare employers in July 2021.

Per Biden’s announcement, the ETS will also require covered employers to provide paid time off to employees to receive their COVID vaccinations and to deal with any symptoms that occur after vaccination.  The announcement contained no reference to the manner in which the testing opt out would be administered or whether time spent testing also would be compensable time.  The ETS likely will include provisions for religious and medical accommodation, which Biden has included in the federal worker mandate.  However, we do not know whether this is designed to permit exemption from testing.  It also is difficult to predict how the ETS will handle other important issues, such as remote workers.

Twenty two states have OSHA state plans that cover private employers.  State plan states will have 30 days from the date of the federal ETS to implement their own requirements, which must be at least as effective as the federal ETS.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 253
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About this Author

Reilly C. Moore Labor & Employment Hunton Andrews Kurth Richmond, VA
Associate

Reilly counsels employers on all aspects of labor and employment law.

Reilly has defended clients in a variety of matters, including Title VII employment discrimination claims, Family Medical Leave Act claims, Fair Labor Standards Act class actions and state law public policy claims. Reilly also has extensive experience representing clients in front of government agencies, including the Equal Employment Opportunity Commission and the Virginia Employment Commission. Reilly has assisted clients in managing union organizing activity and counseling management on...

804-788-8409
Susan WIltsie Employment Lawyer Hunton Andrews Kurth
Partner

Susan’s practice focuses on labor, employment and OSHA compliance, litigation and defense.

Susan’s practice includes comprehensive OSHA/MSHA representation of employers across all industry sectors. Her OSHA/MSHA practice includes compliance assistance, training, citation defense, participation in rulemaking, appellate administrative litigation, whistleblower cases, creation/oversight of PSM/RMP and general OSHA audit programs, and fatality/serious injury accident investigation.

Susan has 30 years of experience...

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