Are Employers Prepared for OSHA’s Mandatory “Vaccine or Test” Rule?

By John Gannon - Skoler Abbott

October 15, 2021

Earlier this week I had a chance to talk to George O’Brien from BusinessWest about the forthcoming Occupational Safety and Health Administration (“OSHA”) rule that will require employers with 100 or more employees to implement mandatary COVID vaccination policies.  George and I have been talking about the impact of COVID-19 on the workplace for more than a year-and-a-half now (he even interviewed me back on August 17, 2020, on his popular BusinessTalk podcast series to talk about the top questions and concerns of employers during the pandemic).  This week we discussed the importance of increasing vaccination rates in the fight against COVID.  We also agreed that this new OSHA Rule has the potential to impact some employers as much if not more than any other COVID-related legislation or guidance we have seen since the start of the pandemic.  Here are a few reasons why:

1. OSHA Rule Recap:  Last month, President Biden directed OSHA to issue an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workers are either fully vaccinated or get tested weekly for COVID-19.   Employers will also be required to provide paid time off to employees to get vaccinated and recover from any side effects from the vaccine.  The Biden Administration estimates this will impact over 80 million workers in private sector businesses.
2. Rule Coming Soon:  Earlier this week, OSHA submitted a proposed ETS to the United States Office of Management and Budget (OMB), which is likely the last step before the Rule goes live.  This report suggests the Rule will be announced next week.
3. Penalties:  Employers that fail to comply with the ETS will face enforcement actions from OSHA, which may include fines up to $13,653 per violation.  So, if a workforce with 100+ employees has 10 unvaccinated workers who are not testing weekly for COVID-19, the business could be looking at a fine of well over  $100,000.  Also, if OSHA gets a call from employees complaining about unvaccinated workers in your workplace, expect OSHA compliance officers to show up at your door, possibly unannounced, looking to inspect your entire facility for any and all safety violations.    
4. Evaluating Exemptions:  Employees who cannot get vaccinated due to a bona fide religious belief or disability may be entitled to an accommodation from the vaccination requirement.   It  is up to the employer to determine whether medical and/or religious exceptions are legally permissible, and if OSHA comes knocking it will certainly scrutinize any documentation gathered in connection with granting a religious or medical exemption.  Of course, employers who reject religious or medical accommodation requests open themselves up to a discrimination and/or failure to accommodate lawsuit.
5. Open Questions:  The biggest questions surround the weekly testing option.  Will employees need to be paid for the time spent traveling to and from the weekly testing site, even during off-hours?  How about the time spent waiting to get the test?  And who pays for the tests themselves – employers or employees?   What type of testing will be sufficient (PCR vs. rapid, at-home vs. community testing site), and who will ensure the employee is the one who actually took the test (particularly if at-home is sufficient)?  Hopefully these issues (and more) will be addressed in the ETS.

Bottom Line:  Employers with 100+ employees need to put their workforce on notice soon that the OSHA Emergency Standard will require everyone to get vaccinated.  A proper communication strategy (reviewed by counsel) is key.  You also want to give employees a head start if they need to raise medical or religious objections to vaccination. Employers should have medical and religious exemption forms on file to provide to employees who raise objections.

Skoler Abbott is planning to present a virtual briefing on this topic once the ETS is accounted. Stay tuned for more details.