By Joseph S. Brown, Esq.
On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan. The Plan sets forth a six-pronged approach aimed at reducing “the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.” Portions of the plan will impose new obligations on private employers with 100 or more employees.
Of particular significance to private employers is the first prong of the Plan, “Vaccinating the Unvaccinated,” which directs the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule that will require all employers with 100 or more employees to 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. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. According to the White House, this requirement will impact over 80 million workers in private sector businesses with 100+ employees.
At the moment, details about the proposed ETS have not been revealed. News reports have quoted a senior administration official as stating that the vaccination requirement could carry a $14,000 fine per violation. It is unclear how the ETS will be worded and the timeline for implementation. The one thing we can guarantee is that there will be legal challenges to OSHA’s authority to issue the ETS, which could potentially delay implementation of the rule if a lower court were to issue a stay.
Even before the White House announcement, several large employers (particularly in the healthcare industry) and state governments had announced mandatory vaccination requirements for their workforce. A vaccine mandate for large employers could very well provide smaller employers (with less than 100 employees) with the legal cover they need to implement their own vaccination mandates.
Private-sector employers should seek legal advice in order to design a mandatory vaccine policy that provides for exemptions for people with qualified disabilities, as defined under the Americans with Disabilities Act, and for people with sincerely held religious beliefs, as defined under Title VII of The Civil Rights Act. Experienced legal counsel can also guide clients through practical and legal considerations that arise when analyzing whether a requested accommodation rises to the level of an “undue hardship” for the employer. It also is prudent to seek legal counsel before offering incentives for employees to get vaccinated to ensure compliance with guidance issued by the U.S. Equal Employment Opportunity Commission, which we discussed in a previous article.
Hurwitz & Fine continues to monitor and analyze state and federal updates to employment laws. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900 or by email.