On September 9, 2021 President Biden released a COVID-19 action plan outlining a six-pronged national strategy intended to “ensure we are using every available tool to combat COVID-19 and save even more lives in the months ahead.” It remains unclear when the requirements set forth in the plan will be finalized, so the effective dates and many other details are not yet known. Below we highlight two requirements under the “Vaccinating the Unvaccinated” section of the plan that will have a direct impact on employers.
Requiring All Employers With 100+ Employees to Ensure Their Workers Are Vaccinated or Tested Weekly
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing 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. Federal law requires insurers to fully cover COVID tests when ordered by a health care provider, but routine workplace tests are exempt from that provision, so it remains unclear who will be responsible for the costs of these tests.
This portion of the plan is likely to face substantial legal challenges, and it could take months before these requirements are implemented. OSHA is expected to issue its rule on the vaccine or testing requirements in the coming weeks. OSHA also plans to issue substantial fines of nearly $14,000 per violation against those who do not comply.
Requiring Employers to Provide Paid Time Off to Get Vaccinated
OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will also be implemented through the ETS.
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