OSHA Is About To Drop Mandatory COVID-19 Vaccine Guidance


After President Biden dropped a mandatory COVID-19 vaccine/testing order on September 9, 2021, large employers have been waiting patiently for guidance from the Occupational Safety and Health Administration (OSHA).

President Biden’s new vaccination/testing mandate told employers with 100+ employees that OSHA would provide guidance:

The 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. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The Executive Order also required healthcare workers to all get vaccinated and mandated the COVID-19 vaccine for federal contractors and subcontractors.

Well, guess what? Our friends at Bloomberg Law reported here that the U.S. Labor Department, of which OSHA is one agency, sent an emergency regulation for final White House review yesterday!

Once the White House approves the emergency regulation, OSHA finally can publish the emergency temporary standard (ETS).

The effect on large employers will be immediate.

Image by Gerd Altmann from Pixabay

If you recall, employers posited soooo many questions about President Biden’s vaccine mandate.

My employment law partners and I covered many of these questions in a Zoom sesh on my partner Eric Meyer‘s YouTube channel, which, ICYMI, you can watch here: https://bit.ly/TheEmployerHandbookYouTube.

Some employer questions included—

  • How do we calculate whether our organization has 100+ employees? Do we need to have 100 in one location, or is it in every location? Do we include remote workers?
  • What about independent contractors and business owners/partners? Do they constitute “employees” for purposes of the mandate?
  • How do we keep up with the requests for accommodations? Do we need proof if an employee claims a religious exemption? (I have SO MUCH to say about employer management of accommodations, I could write a book.)
  • What about booster shots? What does it mean to be “fully” vaccinated?
  • For weekly testing, which test should I allow employees to use? Who pays for their time to test?
  • What are the penalties for noncompliance? Are my managers expected to enforce the mandate? How?

While we hypothesized as to the answers to some of these questions, it seems OSHA is going to set the record straight sooner than later.

Employers, are you ready?

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.