President Biden Announces Vaccine Requirement For Private Employers

Published date15 September 2021
Subject MatterEmployment and HR, Coronavirus (COVID-19), Health & Safety, Government Measures, Employment and Workforce Wellbeing
Law FirmFreeman Mathis & Gary
AuthorMr Jacob McClendon

On September 9, President Biden announced that the Occupational Safety and Health Administration ("OSHA") will develop an emergency rule requiring private businesses with 100 or more employees to require their employees to be fully vaccinated or to produce a negative test result at least once a week. This will be a sweeping rule that is projected to affect over 80 million workers in the United States, provided that it withstands anticipated legal challenges.

While President Biden has announced the plan, employers should initially take a deep breath as we do not anticipate the proposed rule to be announced by OSHA until late September 2021 (at the earliest). Even then, we anticipate that OSHA will give employers at least 60 days to comply with the vaccine or testing mandate. As a result, while President Biden's plan has triggered a lot of immediate concern and speculation, we believe there will be some opportunity for interested parties to chime in on the scope of the proposed rule and possibly flesh out answers to some of the more pressing questions surrounding the application of the rule.

In addition to mandating the vaccine or testing, the proposed rule also will:

  1. Require employers to provide paid time off for employees to get vaccinated and to recover from any side effects of getting vaccinated;
  2. Allow the government to take enforcement actions, which could result in fines of up to $14,000 per violation; and
  3. Allow companies to mandate the vaccine and not offer a testing alternative.

Because the proposed rule is still being developed, it is silent on several critical questions. Foremost among them is whether employers will be expected to pay for tests and how quickly they will be expected to ensure their employees comply with the rule. The answer to the first question is unclear, although President Biden's COVID Plan notes it is expanding free pharmacy testing and working to make at-home tests available at cost. As a result, employers may be able to require employees to utilize either rapid or PCR tests available for free at pharmacies or purchase more affordable at-home tests.

As to the second question, the White House has said the rule will give employees sufficient time to get vaccinated before taking effect. Press Secretary Jen Psaki indicated that federal employees will have 75 days to be fully vaccinated as part of President Biden's executive order requiring all federal...

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