President Biden has announced a series of proposals to combat the COVID-19 pandemic more aggressively. The COVID-19 Action Plan directs the Occupational Safety and Health Administration (OSHA), the agency within the Department of Labor responsible for setting safety and health standards for many employers, to develop a new rule requiring all large private employers (with 100+ employees) to ensure their workforces are fully vaccinated. Employees who remain unvaccinated will be required to produce a negative test result on a weekly basis. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. Employers would also have to give workers paid time off to get vaccinated or to recover from any side effects of getting vaccinated. It is likely that the ETS will be issued in the next few weeks.

 

There are questions that need to be answered which include: will employers be required to collect proof of vaccination; what type of testing will be required (antigen, PCR, etc.); who pays for testing. It is anticipated OSHA’s ETS will not apply to remote employees who never come to the workplace or work outside of the office with others, and that the 100+ employee threshold would be the total number of employees rather than by each worksite – but we must wait for the official rule from OSHA to know.

 

While the ETS will face legal challenges, employers should not count on being relieved of all obligations and should prepare. What employers can do now:

 

• Evaluate if any of these requirements would apply to your workforce and consider related logistics.
• Prepare to adopt a system for determining vaccination status and for tracking weekly test results (as applicable). You will need to maintain a confidential list of vaccinated employees and weekly test results (as applicable).
• Decide if you will mandate the vaccine or allow unvaccinated employees to test weekly (as applicable).
• Have a plan for addressing non-compliance by employees and handling accommodation requests.
• Prepare for OSHA complaints and inspections. OSHA’s vaccination ETS will not displace current OSHA standards and requirements related to COVID-19 safety in the workplace. Click here to read about How To Prepare for an OSHA Visit.

 

 

Health care workers in most settings that receive Medicare or Medicaid reimbursement are also covered under the President’s executive order. The Centers for Medicare & Medicaid Services (CMS) is taking action and developing a rule that will be issued in October. Health care employers with 100+ employees would also need to comply with the OSHA ETS but the ETS is expected to be drafted to be compatible with other required measures.

Stay tuned for updates and reach out to your FrankCrum contacts as needed.