Biden’s Vaccine Mandate and Employers - Exploring possibilities in The Osha Emergency Temporary Standard

President Joe Biden has tasked the Occupational Safety and Health Administration (OSHA) with drafting an emergency temporary standard (ETS) regarding vaccine mandates for employers with over 100 total employees.

The ETS will include a mandate for employers with 100 or more employees to enforce one of the following:

• Require employees to get vaccinated against COVID-19
• Require unvaccinated employees to produce evidence of a negative COVID-19 test each week

Within this mandate, employers will need to decide how to enforce compliance. In other words, some employers may decide to make vaccination a condition of employment; others may only require negative COVID-19 tests.

Other items that may be addressed in the ETS, over and above the vaccination / unvaccinated testing requirements, may include:

• Employers providing paid leave to receive and recover from vaccinations.
• Remote employees not working in contact with others will be exempt from the ETS
• Any remote worker who comes into the workplace must be vaccinated or provide a negative COVID test.

Questions about the ETS that may be addressed by OSHA in future mandate updates:

• When will enforcement begin, and what will that look like?
• What qualifies as proof of vaccination or a negative COVID-19 test?
• Who pays for weekly testing (fed/employer/employee)?
• Will the mandates apply to part-time workers?
• How should employers handle accommodations for employees seeking an exemption?
• Must paid leave be provided for employees’ COVID-19 testing, as it is for vaccinations?
  
  
  

OSHA ETS Rollout Timetable

First, OSHA will publish its ETS that will include important details and enforcement guidelines in the coming weeks. (The actual release date is currently unknown). Once issued, the ETS will take immediate effect in states where federal OSHA has jurisdiction.

An ETS can only remain in effect for six months. After that time, it must be replaced by a permanent standard, which must undergo a formal rule-making process involving a notice-and-comment period to allow stakeholders to submit feedback. This process follows the usual procedure for adopting a permanent standard except that a final ruling should be made within six months from that date OSHA publishes the ETS in the Federal Register.

Getting Started with the ETS

While many details are still unknown, the primary vaccination or testing requirement is a centerpiece of the ETS. Employers can prepare for the upcoming requirement in these ways:

• Discuss with leadership internally whether COVID-19 vaccination will be required as a condition of employment or if weekly negative testing will be an alternative.
• Consider how to handle accommodation requests for those seeking vaccination exemptions.
• Start planning an employee communication campaign to educate workers about vaccine policy changes.
• Think about the systems needed to adequately track employee vaccination statuses and confidentially secure the data.
• Plan for potential staffing shortages or scheduling changes to afford employees time to get vaccinated.
• Consider workstations and WFH accommodation

OSHA Vaccine ETS requirements will take effect quickly once they are announced. Employers will need to act swiftly when the time comes to ensure compliance. Taking proactive steps now can help save employers from a scramble at the end of the year.

Diversified Insurance Industries is here to help you understand how this new rule may affect your business. In the meantime, stay tuned for updates as this situation develops. We are committed to helping your company reduce risk by providing clear guidance about the new OSHA mandate updates, and working with your teams to provide a safe, healthy workplace. If you have any questions about the mandate or COVID safety, please reach out to your DII Representative.