On September 9, 2021, President Biden announced that he has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to promulgate an emergency temporary standard requiring all US companies with 100 or more employees to ensure that their workers are either vaccinated against COVID-19 or tested  weekly before coming to work. In an 11-page memo, “Path Out of the Pandemic” (the Memo), the President announced a “six-pronged, comprehensive national strategy” to combat COVID-19, including the OSHA emergency rule.

The White House estimates the OSHA emergency rule will apply to more than 80 million private-sector workers.

Here’s what US private employers need to know right now.
  • The emergency rule will require all US employers with 100 or more employees to either ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The emergency rule will undergo a process of expedited review before taking effect, and will be issued without public comment.
  • The emergency rule is expected in the coming weeks, and will take effect shortly thereafter.
  • Once the rule is in place, businesses who violate its provisions could face penalties of up to $14,000 per violation.
  • According to the memo, businesses will be required to provide workers with paid time off, both to get vaccinated and to recover from side effects from vaccination.

As part of the plan, President Biden announced he will require all health facilities accepting Medicare or Medicaid funding to vaccinate their workforces.

He also signed two executive orders on September 9 addressing federal employees and contractors. The first Executive Order requires all federal employees to be vaccinated, with no option to be regularly tested instead (the only exceptions to vaccination being those “required by law”)–a method the President reportedly hopes state governments and private companies will adopt. The second is an Executive Order “directing that this standard be extended to employees of contractors that do business with the federal government” (according to the Memo), indicating that federal contractors will also be required to ensure their workers are vaccinated, with no testing option.

The President’s plan also calls on large entertainment venues, like sports arenas, large concert halls, and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.

For now, employers should stay tuned for additional updates pending the issuance of OSHA’s emergency rule, and check out our other recent resources on mandatory vaccination:

As always, for assistance with any employment related needs, contact your Baker McKenzie employment attorney.