White House Issues New Rulebook and Ordinance to Increase Vaccinations for Private Sector Workers | Goodwin
On September 9, 2021, the White House announced three measures to increase COVID-19 vaccinations for private sector workers across the country. These extraordinary actions, aimed at containing the swelling delta variant and preventing future waves of infection, will almost certainly present legal challenges.
First, the White House announced that the Occupational Safety and Health Agency (OSHA) is drafting an ordinance requiring all employers with 100 or more employees to ensure that all of their employees are either fully vaccinated or adhere to a negative COVID-19 test result at least weekly before you get to work. The White House estimates that this new regulation will apply to over 80 million workers.
The new regulation is to be classified as an “Emergency Temporary Standard”. In order to qualify as a temporary emergency standard, the Minister of Labor must conclude that workers are exposed to a “serious risk” that the temporary emergency standard must prevent. In contrast to most other regulations, a provisional emergency standard takes effect immediately after it is published in the federal register. The White House announcement did not estimate when the new ordinance would be enacted, but as it must be based on an identification of a serious risk to workers, the ordinance is expected to be enacted soon.
Non-compliant companies could face significant penalties. The maximum fine under OSHA for a “serious” violation is currently $ 13,653, while the maximum fine for an “intentional or repeated” violation is $ 136,532.
Second, the White House announced that OSHA is also developing an ordinance that obliges employers with more than 100 employees, both for the time it takes to get vaccinated and for the time to stay away from the negative effects of vaccination to recover, to grant paid leave. This regulation is also issued as a provisional emergency standard and is therefore expected to be issued in the near future.
Third, President Biden gave one supreme command Requirement that future contracts with federal contractors and subcontractors contain a clause stipulating compliance with the upcoming COVID-19 guidelines. According to the White House announcement accompanying the issuance of the new executive order, the upcoming guidelines will provide for employees of federal contractors and subcontractors to be vaccinated against COVID-19, subject to statutory exceptions. The requirement to include a contractual clause mandating compliance with the upcoming COVID-19 guidelines applies, subject to certain exceptions, to covered contracts concluded, extended, or renewed on or after October 15, 2021. The implementation ordinance on federal contractors and subcontractors was issued in conjunction with an implementation ordinance that stipulates that all federal employees are vaccinated against COVID-19, unless legally prescribed exceptions apply.
While the new OSHA regulations are expected to be released shortly, OSHA may face some potentially challenging issues as the regulations evolve. For example, there are currently unresolved questions regarding (1) whether employers will have to pay for COVID-19 testing of workers who refuse vaccination and opt for weekly testing, and (2) whether employers will have to pay for testing time and related travel through those employees who are not exempt. Such issues are generally not within OSHA’s purview, but OSHA may find it necessary to address them. In addition, OSHA needs to determine whether the same vaccination or testing requirements should apply to fully removed workers. It is not clear that OSHA could determine the need to issue such mandates for fully removed workers in order to protect them from “grave danger”.
None of the new initiatives are expected to change the US Equal Opportunities Guidelines on June 28th. Reviewing applications for these exemptions can be challenging for employers, as described in a. discussed Goodwin customer notification Published June 2021.