President orders “vaccinate or test” for US private businesses with 100+ employees
From TMA’s Weekly E-News Bulletin for TMA members:
SCHAUMBURG – Last week President Biden directed businesses with 100 or more employees to mandate that their employees get vaccinated or be tested weekly for COVID-19. Implementation of the President’s directive will be through an “emergency temporary standard” (ETS) issued by the Department of Labor / OSHA.
Given the lack of current details about the requirements, the unprecedented nature of the President’s strategy for enforcing mandatory vaccinations for private sector employees through OSHA, and numerous challenges to the legality of the Administration’s approach, employers are left with many unanswered questions related to this COVID-19 action plan. For example: Will the employer be required to pay for the mandated vaccine or testing; will they be required to compensate employees for time spent receiving weekly COVID tests; will the limited availability of COVID testing resources impact testing obligations; will there be medical or religious exemptions reflecting state laws; and will the leave provision of FFCRA be extended in some way beyond their current 9/30/21 expiration? More HERE.
It can take a considerable amount of time before a new regulation can go into effect, and even then it can be subject to court challenge by those who are impacted by it. While an ETS is not subject to the strictures of the Administrative Procedures Act (APA), that doesn’t mean OSHA can adopt one without proving an emergency continues to exist at the time of implementation. In fact, OSHA has not successfully issued an ETS since 1978. Its last attempt before COVID was invalidated by a U.S. Court of Appeals in 1984 based on failure to prove an ongoing emergency. More recently, a federal appeals court rejected a lawsuit by the AFL-CIO seeking to force the Trump-era OSHA to adopt an ETS. Both incidents may indicate how unfriendly the courts could be.
Additionally, federal OSHA only controls enforcement in about 28 states; the remainder regulate workplace safety through state agencies and laws. Accordingly, the sheer scope of this new order creates an enormous number of management and cost complications. Even employer groups that have embraced the concept of the President’s order are questioning how these details will eventually be worked out. More HERE.
What to Do:
Until there is an ETS, members should continue to operate as they’ve been doing regarding vaccinations and workplace safety. TMA will continue to monitor the situation and alert you to any changes that may impact your business.
From TMA’s Weekly E-News Bulletin for TMA members. For more information, email [email protected]