On Sept. 9, President Joe Biden announced a new COVID-19 Action Plan intended to combat the resurgence of the COVID-19 pandemic. Most notable about the president’s announcement was his plan to mandate that private businesses with more than 100 employees require their employees to be vaccinated or undergo weekly COVID-19 testing.
The president intends to push this mandate through the Occupational Safety and Health Administration’s (OSHA) issuance of an emergency temporary standard. OSHA issues an emergency temporary standard under very limited circumstances. OSHA must first determine (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) “that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1).
Once published in the Federal Register, an emergency temporary standard becomes effective immediately, without any opportunity for public comment and may be in place for up to six months. Notably, the emergency temporary standard does serve as a proposal for a permanent standard and is subject to the usual notice and comment rulemaking procedure for adopting a permanent standard. But, in the meantime, the emergency temporary standard is in place.
This new emergency temporary standard will supplement an emergency temporary standard that OSHA adopted last June that only applies to the healthcare sector. The new emergency temporary standard is expected to require employers with more than 100 employees to ensure that their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
In addition, the new temporary standard is expected to require employers to provide paid time off for the time it takes workers to get vaccinated or recover if they are under the weather post-vaccination. It’s unknown whether the employer or the unvaccinated worker will be responsible for the cost of weekly COVID-19 testing. It’s also unknown whether the standard will require employers to pay unvaccinated workers for time spent getting a COVID-19 test.
Employers who do not comply with the standard, when published, will face penalties of up to $13,653 per violation if the violation is considered “serious.” However, in the event that a violation is considered “willful,” employers could face penalties of up to $136,532 per violation, the current maximum penalty for a “willful” violation. When the emergency temporary standard will be published and effective is currently unknown, but it may be as soon as a couple of weeks.
For those contractors in states with state OSHA plans, the state agency must have an emergency temporary standard that is at least as effective as federal OSHA’s emergency temporary standard, and to have it in place within 30 days of the publication of the federal standard.
Litigation is sure to follow the publication of OSHA’s anticipated emergency temporary standard. Indeed, as of Sept. 17, 24 Republican state attorneys general have threatened a lawsuit over the vaccine mandate. While we wait to see what will follow the publication of this emergency temporary standard, construction employers would be wise to check with their workforce now to determine which of its employees are vaccinated. In this regard, the law does permit employers to ask whether employees are vaccinated. But the law does not permit employees to ask those employees who are not vaccinated why they are not vaccinated because that would be a violation of the Americans with Disabilities Act.
In the meantime, on the same day the president announced his intentions with regard to private employment, he also issued an executive order, effective immediately, which requires employees of federal contractors to be vaccinated, without a testing alternative, with an exception only for those who qualify for an accommodation.