President Biden Issues New Vaccine Mandate For All Employers With 100 Or More Employees

By Charles P. Keller, Christy D. Joseph, and Kevin M. Brown

Frustrated with a lagging rate of vaccinations, the Biden Administration decided to get out the stick since the carrot has not improved the vaccination rates to the levels that it wants to see. The Department of Labor, through the Occupational Safety and Health Administration (OSHA), plans to issue an Emergency Temporary Standard (ETS) within the next couple of weeks mandating that all employers with 100 or more employees require their workers to be vaccinated or undergo at least weekly COVID-19 testing. Additionally, employers will be required to offer employees paid time off to get vaccinated. It remains to be seen what specific type of testing will be required, if any, and whether employers will also be required to bear the cost of weekly testing for unvaccinated employees.

This new mandate is estimated to cover 80 to 100 million employees. OSHA’s new ETS will be effective immediately in all Federal OSHA jurisdictions. In states that have their own OSHA-approved plan and agency, which encompasses about half of the states, those states can either immediately adopt OSHA’s ETS, proceed with the state’s own OSHA procedures to adopt the OSHA ETS, or they can draft their own alternative standard that is at least as effective in protecting employees as the OSHA ETS. Thus, many states may use one of these alternative steps to delay the adoption of the OSHA ETS.

Many of the details of the new ETS provisions remain unknown, including its effective date. However, many states and other business groups have already announced that once the ETS is published, they plan to challenge the legality of the new standard.